[Comment-Ip] Comments on WIPO recommendations

[Ted Hardie <hardie@best.com>]

	As one of the dwindling percentage of people who remember the
Internet during the days of host tables and the non-commercial
Acceptable Use Policy, I am rarely surprised by a newcomer's failure
to understand the history of the Internet.  In the case of the WIPO
recommendations, however, I am shocked and saddened to see what
certainly seems to be a case of willful ignorance in the face of an
enormous effort to educate.  This set of recommendations contains a
pervasive sense that WIPO doesn't see why an existing set of practices
should not be moved into their own system, no matter what the effect
on the existing system.  It also contains an amazing set of corkscrew
presumptions about operating principles which make sense nowhere,
within their jurisdiction or without.
	The section describing the "problem of uniqueness" is the
worst.  On the one hand, they appear to endorse such untenable
monstrosities as a web page with a list of potentially overlapping
domain participants, which is not only contrary to existing business
practice for every other contact method but fundamentally fails to
understand that there isn't always a human involved in Internet
interactions.  On the other hand, they assert that holders of marks
within their system should be favored over current domain name holders
for unique access to domain name resources.
	While the same sets of problems could be annunciated against
the whole document, there seems little point; WIPO wants to
"regularize", for which read "control", this aspect of the internet,
and they seem to be willing to make whatever assertions it would take
to make it so.  I suggest that the simplest method to handling this is
probably best: allow WIPO to assume control over marks in the Internet
space, but do so by forcing WIPO to recognize the Internet as a
specific trademark domain.  By so doing, we allow current domain name
registrants to have prima facie evidence that they have established a
mark in that specific domain.  The courts can then force any litigant
to stand the much more stringent tests of having a mark that extends
across all trademark domains before they can wrest control of an
Internet domain from its existing users.
	That stand won't be easy to get through WIPO, as it involves a
change to their system as well as a change to the Internet, but it
does give them a measure of control and is fundamentally more fair
than the existing proposals.
			regards,
				Ted Hardie