browse comments: WIPO RFC-1

WIPO RFC-1
hans.ojemark@pts.se
Fri, 21 Aug 1998 12:21:56 -0400

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Attachment: http://wipo2.wipo.int/dns_attachments/attach903716516.doc

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Reply to Request for Comments on Terms of Reference, Procedures and Timetable for the WIPO Internet Domain Name Process (WIPO Rfc-1)

The World Intellectual Property Organisation (WIPO) has issued a request for comments (WIPO RFC-1) on terms of reference, procedures and timetable for the WIPO Internet domain name process. At this instance, comments are sought specifically on whether issues mentioned in the RFC are appropriate for the process, whether they are adequately described and whether any further issues should be included. Regarding the background of the RFC, WIPO refers to the Statement of Policy on "Management of Internet Names and Addresses" ("White paper") issued on June 5, 1998 by the National Tele-communications and Information Administration, an agency of the Department of Commerce of the United States Government.

In a paper titled "background information" (http://wipo2.wipo.int/process/eng/
background.htm), WIPO quotes a passage in the White paper where the U.S. Government announces that it will seek international support to call on WIPO to initiate a process to (1) develop recommendations for a uniform approach to resolving trademark/domain name disputes, (2) recommend a process for protecting famous trademarks in the generic top level domains, and (3) evaluate the effects of adding new gTLDs and related dispute resolution procedures on trademark and intellectual property holders.

The White paper was preceded by an earlier document from the National Telecommunications and Information Administration, "A Proposal To Improve Technical Management of Internet Names and Addresses" (the "Green paper") . The Green paper solicited comments on an arrangement whereby, at the time of registration, registrants would agree to submit a contested domain name to the jurisdiction of the courts where the registry is domiciled, where the registry database is maintained, or where the "A" root server is maintained. This suggestion drew strong protests, especially from outside of the United States. The White paper states that a number of commenters characterized this as an inappropriate attempt to establish U.S. trademark law as the law of the Internet. In response, the U.S. Government has called on WIPO for the present action.

In reading the White paper, it would appear that WIPO perhaps has not properly appreciated the paragraph immediately following the one it quotes. This paragraph (section 8 of the White paper, under "Response"), reads in part:

"In trademark/domain name conflicts, there are issues of jurisdiction over the domain name in controversy and jurisdiction over the legal persons (the trademark holder and the domain name holder). This document does not attempt to resolve questions of personal jurisdiction in trademark/domain name conflicts. The legal issues are numerous, involving contract, conflict of laws, trademark, and other questions. In addition, determining how these various legal principles will be applied to the borderless Internet with an unlimited possibility of factual scenarios will require a great deal of thought and deliberation."

The present RFC includes two terms of reference to national law, sections g and h under "Dispute Resolution". We believe the WIPO Internet domain name process should place greater emphasis on reconciling diverging national laws on intellectual property with the transcendent nature of Internet domains than the RFC now expresses. The evolving Internet has an honourable tradition of self-regulation, and, to some degree, self-policing. As the importance of the Internet to commerce and to society continues to grow, the issues of its governance expand from agreeing on technical protocols to matters long regulated in a body of law. Treatment of intellectual property rights provide an example of such a regulated area.

Any WIPO model for resolving domain name disputes will still be subject to national law, as administered by territorial governments. Factors deciding jurisdiction may vary from case to case. The purpose of the WIPO domain name process should not be to seek to change existing rules governing jurisdiction and choice of which country’s laws will apply.

Next, the legal grounds intended in the WIPO recommendation concerning domain names need to be clarified in an early stage of the process. This can be done by formulating model rules for registries to impose in contracts with domain name registrants. In our opinion, such model rules must take into consideration existing national laws. This is especially important as regards compulsory rules on competition, consumer protection and intellectual property rights. We realize this involves a large amount of work - it is a task that can hardly be done within the timetable suggested in the RFC.

Our conclusion is that material rules on granting domain names as well as rules governing jurisdiction and choice of national law will eventually need to be established by international treaty between the states.

Respectfully,

Hans Öjemark <hans.ojemark@pts.se>
Henrik Nilsson <henrik.nilsson@pts.se>
Legal advisors
Swedish Post and Telecom Regulatory Agency
Box 5398
SE-102 49 STOCKHOLM
Sweden

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