Comments on WIPO Final Report on Internet Domain Name Process

A Commentary on WIPO’s RFC on The Management of Internet Names and Addresses: Intellectual Property Issues.

Version 1.0: May 20 1999

Author: Don Rae
Manager Internet Services, JADE Group
PO Box 20-152, Christchurch, New Zealand
mail: drae@discoverjade.com
url: http://www.discoverjade.com

Executive Overview

Introduction

This document represents an individual’s perspective on the contents of the Final Report of the WIPO Internet Domain Name Process (WIPO Report).

This document does not purport to comment on issues that are peripheral to the written substance of the WIPO Report(s) such as:

the authority of ICANN to impose any changes onto ccTLDs.
the representative depth and width of ICANN’s constituency (it is noted that contributors to the process represent an infinitesimal fraction of the whole pool of internet users and stakeholders.)
and any other non-essential political or quasi-political issues

It does attempt to distil the issues down to a few key points for further debate and consultation.

Insofar it is one individual’s perspective on the Reports from a commercial perspective, again the writer claims no constituency from any New Zealand business organization. Indeed it is noted that there is no equivalent to the Northern Hemisphere’s European Internet Business Association located within New Zealand or in the immediate surrounds.

This document in no way represents the outlook of JADE Group, the writer’s employer, nor that of Aoraki Corporation, JADE Group’s parent company.

Commentary Summary

Defining "abusive registrations" is a helpful step, and an improvement on NSI’s present policy.
The writer does not agree with the concept that non-commercial organizations and individuals cannot be in breach of intellectual property rights, and supports a level of non-commercial, use restricted gTLDs or ccTLDs only on implementation of a pseudonymous registration system (i.e. contact through to the anonymous registrant via a trusted independent 3^rd party)
The introduction of new gTLDs by itself could in fact reduce the tension between owners of marks and domain name holders through a tighter mapping of domain name to business function of the domain. For example .SEX would be a very identifiable and obvious method of labeling sites containing adult material. This would circumvent the recent rash of so-called cyber-typo-pirates (e.g. the operators of wwwbarnesandnoble.com) and also provide a very straightforward way of controlling or monitoring the access of such material.
The effort to provide "famous names and marks" some kind of veto power with respect to purportedly similar domain names should be strenuously resisted. While perhaps well intentioned, the effect will be to give a privileged few a right that other individuals and organizations will not enjoy. At best, it will represent a well-intentioned use of a sledgehammer to crush an ant. At worst, it will enforce a deliberate bias to an elite of corporate trademark holders that can leverage a committee of experts’ approval. This is especially so, when considered in light of the difficulty that the intellectual property community has in defining exactly what constitutes a "famous name or mark." Unanswered questions remain, such as how does one become a "famous name or mark," and (just as importantly) how is a "famous name or mark" removed following its use-by date has expired?
Michael Froomkin’s comments re errors in drafting are supported in their totality. There are still parts of the Report that are a long way from reaching any kind of global consensus or acceptance.

Commentary Structure

The remainder of this commentary is arranged into identical headings to that of the WIPO Report with relevant references and comments following.

Commentary Background

It is based on the writer’s attendance at the ISOCNZ National Summit on April 30 at Auckland. New Zealand, discussions with various NZ industry experts, and various readings including Versions 3 and 4 (Final) of the WIPO Report, postings from ICANN, WIPO and ISOCNZ newsgroups and various other internet based commentaries including those of A. Michael Froomkin.

Executive Summary

Best Practices for Registration Authorities, paragraph (ii)

The writer strongly supports the collection (and enforcement of that collection) and availability of accurate and reliable contact details. It could be argued from a philosophical perspective that there be a facility for domain name holders, under the aegis of political, intellectual or religious freedom, to apply to an independent panel of experts, similar to that proposed for domain name dispute resolution procedures. However the writer does not support any commercial organization requiring or obtaining anonymity.

Best Practices for Registration Authorities, paragraph (iii)

This paragraph should be qualified to read, "In dispute situations, where it can be shown that contact details are inaccurate… Upon independent verification… …the registrar should be required to cancel the domain name registration."

The use of "independent" in this paragraph should be qualified to specify that this verification NOT be from the dispute arbitrators.

Administration Procedure Concerning Abusive Domain Name Registration

Paragraphs (v) and (vi) are supported in principal.

Exclusions for Famous and Well Known Marks

This is rejected in totality as previously noted in this document’s summary. It is the writer’s opinion that such a facility would be inequitable as well being open to abuse itself. Mom ‘n Pop websites such as in the www.veronica.org case would be an obvious casualty.

Normal dispute resolution procedures as advocated elsewhere in the WIPO Report should suffice for all. Beyond that, traditional legal remedies still apply.

New gTLDs

In terms of the quantities of cases involving tensions between trade name holders and domain name holders, it’s fair to say that the bubble has past with this trend. Judicial ruling after judicial ruling has recently gone in favor of the legitimate intellectual property right holders, sometimes with defendants not even opting to appear in court. This would seem to indicate that the trend of abusive name registration is in fact declining with the passage of time.

In fairness, it’s possible that legal intervention and solution prior to court appearance may equally indicate that the problem has somewhat of an "iceberg" profile.

The Report’s approval of new gTLDs on condition of adoption of both the dispute resolution procedure and the famous names exclusion, is not supported. Dispute resolution procedure yes; famous names exclusion, no.

First Steps and Outstanding Issues, paragraph (a)

Feasibility of introducing non-commercial use-restricted domains with anonymous contact details should be indeed explored but is noted that normal dispute resolution procedures should still apply with the provision of a designated third party agent as an interim frontline contact. The growing trend of Online Privacy Statement Monitors (OPSMs) could fulfil a market need for free and independent holding and verification of end domain name holders’ contact details.

Chapter 2, paragraph 68.

Both postal and street address should be supplied.

Chapter 2, paragraph 96.

If this paragraph is applied, online real-time credit card payment must be enabled so as to facilitate rapid registration.

Chapter 2, paragraph 98.

There should be a 3^rd and final notice following 7 days grace after a 2^nd semi-final notice.

Chapter 2, paragraph 119.

Qualify this with "wilful provision of inaccurate or unreliable information by the domain name holder with intention to deceive." (Italics indicate writer’s additions.)

Chapter 3, paragraph 162.

Acceptance of the dispute resolution procedure should be optional but where an appeal is made by the owner of a mark or trade name to the independent arbitrator, then the dispute resolution procedure may proceed without the consent of the petitioned domain name holder, once suitable notices have been delivered to the domain name holder, their designated third party agent, or in the absence of either, then the ISP who is operating the domain.

In other words, opting out will not protect wrongdoers, merely buy 7 days time.

Chapter 4, paragraphs 275. 278, 280.

Any mechanism that enables exclusions for famous or well-known marks is rigorously opposed.

Such as system, will in itself, become open to abuses of power and mischievous or misguided grievance pursuits.

Conclusion: The writer welcomes any written feedback.