[Comment-Ip] comment on wipo final report

[Dinesh Nair <dinesh@alphaque.com>]

dear icann,

firstly, i must state publicly my displeasure that no entity - individual
or institutional - from malaysia had bothered to participate in the wipo
process which resulted in the final report. although MYNIC
<http://www.mynic.net/> did respond to the wipo questionnaire to ccTLDs,
this is inadequate in raising the issues malaysia faces in domain
resolution. the lack of concern for global issues affecting the internet
is very unbecoming of a nation which hopes to lure the planet to its
multimedia super corridor <http://www.mdc.com.my/>. 

as such, allow me the opportunity to raise a lone voice from malaysia on
the recommendations which wipo has put forward in its final report to
icann. 

let me start with paragraph 122 which recommends that domain names be
taken down in event that a third party is unable to communicate with the
contact of a domain. the very nature of the recommendation requires the
third-party to "believe in good faith" that its intellectual property has
been violated. this is moot as it would provide a very trivial method to
take domains down. obviously all IP holders have contended that they are
violated and thus believe so in good faith. it is the civil justice system
which will adjudicate if this is so. 

to compel a registrar to deregister a domain just because the contact
cannot be reached is, imho, very one sided and biased towards the third
party. the case is usually so when you consider that nearly all third
parties are large multinational entities and contacts of the domains in
dispute usually individuals who are using the domains for parody or
satire. granted, the process is for the registrar to attempt contact as
well, but the many legitimate reasons why a contact cannot be reached
seemed to be just brushed off by the wipo commentators. vacation, even
though mentioned in the report, is an issue. more so if you consider that
the internet encourages smaller outfits and one-man-shops to set up
e-businesses and these type of individuals are usually also consultants
who frequently travel due to the nature of their business. 

as a suggested modification to the recommendation contained in para 122,
i'd suggest adding in a grace period for the contact to respond. three
months seems like a decent amount of time for this. only if the period has
passed without response from the contact can the registrar put the domain
on hold pending contact response. note that i said on hold and not
takedown of the domain. this would allow the contact ownership of the
domain while still removing it from accessibility. upon receiving a
response from the contact, the registrar should remove the on hold status
and reactivate the domain to the status quo. from then on, the litigation
process - if it comes to that - can be used to adjudicate the violation of
intellectual property. 

with reference to para 140 which retains the right of parties to seek
court litigation in any event, this goes against the ideals of submitting
to an arbitration process in the first place. domain registrants have - in
registering the domain in question - agreed to an arbitration process in
event of dispute. surely this exhibits good faith on the part of the
domain registrant. by imposing this recommendation, wipo has made the
arbitration process moot and ineffective as win or lose, they'd still
litigate. this not only is unfair to the registrant but makes a mockery of
the arbitration process. 

para 171 states conditions for which a simimilar domain name is registered
in bad faith. it is rather ironic that the conditions therein could all be
fulfilled by a domain being registered for the use of parody or satire. 
note that clause (2)(d) of para 171 could be pushed forward if the
plaintiff - for lack of a better word - feels that the parody is not
funny. i.e. he doesnt get it. i strongly feel that this clause should be
amended to state that it can only be considered bad faith if the domain is
being used in the same category of business as the other domain. this
would be acceptable for the term "disrupting the business" yet allow
parodies and satire thru.

in ending, i would like to state that as expected the wipo report is
strongly biased towards the holders of intellectual property. while this
is not wrong - the internet is built by all of us - it still clouds the
issue for laymen and the general users of the internet who form the
largest constituency and the actual users of any domain name. in this
regard, i feel that the efforts would best be served if an awareness and
education programme were similarly carried out by wipo and other
stakeholders planetwide on this process and the importance of domain names
in the coming millenium. it's only then that we'd get a clearer picture of
what the right process is going to be.

By the grace of God,            /\_/\   "All dogs go to heaven."
dinesh@alphaque.com             (0 0)
+=======================----oOO--(_)--OOo----=========================+
|for a in past present future; do                                     |
| for b in clients employers associates relatives neighbours pets; do |
| echo "The opinions here in no way reflect the opinions of my $a $b."|
|done; done                                                           |
+=====================================================================+
http://pgp.ai.mit.edu/htbin/pks-extract-key.pl?op=get&search=0x230096E9