wipo rfc-2
Rangarajan.T.N.C (rrajan@ap.nic.in)
Fri, 23 Oct 1998 20:05:55 +0530
Browse by: [ date ][ subject ][ author ]
Next message: ceo@MElbourneIT.com.au: "WIPO RFC-2"
Previous message: mikej@sn.apc.org: "WIPO RFC-2"
Dear Mr. Richard Wilder,
Thank you for the opportunity to interact at the Internet Domain
Name Process Consultation held at Hyderabad on Oct. 22nd,1998. I
thought it would be useful if I put down my response on record.
General: The crux of the problem in the naming process is identity.
In the case of personal names where several persons happen to have the
same name, some other distinguishing mark has to be added to preserve
the identity. In the case of commercial units, reputation is built on
distinct brand equity. That itself becomes a kind of intellectual
property and hence the anxiety to preserve it. At the national level
the protection is given by laws relating to trademarks, designs and
copyright. When it comes to internet, there is obviously a competition
between two claimants, having the same commercial name in their own
countries, to have a global presence. The present system of first come
first served is the only equitable system in such a situation, unless
the parties compromise and one of them yields. The basic principle of
having distinct names is to avoid confusion and therefore the addition
of the country of origin indicator will keep them distinct. Other
gateways may also be visualized to avoid such confusion. The
exploitation of this situation by warehousing names and cybersquatting
is a different issue and need not cloud the regular process of
registration. Now to the specifics:
A. Dispute prevention:
14.1 Full information should be gathered to verify the identity. Prior
cc TLD name to be given if it exists.
14.2 The simplest measure to prevent false and misleading information is
to revoke the registration immediately on discovery of any fraud.
14.3 Waiting period is unnecessary as no one really goes through any
bulletin boards particularly the person who has not cared to register
earlier. It will unnecessarily delay the process. The issue will
surface only when another person of the same name applies for
registration. If the prior registration is bona fide the existence of
another claimant for the same name is of no consequence as the principle
being followed is first come first served. He cannot claim precedence
when he has not been enterprising enough to apply earlier. If the
prior registration is only for cybersquatting, it can be revoked and the
fresh claimant given the registration.
14.4 It is certainly desirable to activate the site only after getting
the money. It is one measure to prevent warehousing names without any
outlay.
14.5 Warehousing names is prevalent in other fields also such as movie
industry. It may be useful gather information about how it is tackled
there.
14.6 It seems to be unnecessary to have searches regarding trademarks
because a trade mark, if registered, is itself done only after screening
and overruling the existence of any competing or confusing trademark.
The problem is only with reference to the applications from two
different countries having the same trademark. Here again the first
come rule operates and the subsequent applicants have to distinguish
themselves with some additional name. Let us avoid unnecessary delays
in registration.
14.7 Domain name data base is automatically created when registration
is in progress. Anyone can easily find out whether his name is already
registered by someone else by just accessing that name. If it reaches
a site he knows it is booked and if not , it is available. The
registering software is programmed to deny registration in respect of
names already registered at the level applied and can be easily modified
to include registration at other levels also. There is therefore no
need for any extensive searches and consequential delays.
14.8 The use of listing and gateways is a good idea to make the domain
name more effective in reaching the right person.
14.9 It is certainly desirable that ccTLDs adopt the same norms as
gTLDs.
14.10 Yes. It is also a good idea
.
B Dispute resolution: Anticipated disputes are of two kinds -1.
Competing claims by genuine name holders for the same name and 2.
Allegation of cybersquatting. The first kind is preempted by the first
come rule and can be resolved either by a compromise between the rivals
or by giving a distinctive additional appellation to the subsequent
applicant. The second kind will arise from the action of the registry
revoking the registration and the dispute should be regulated by a
specific provision.
16.1 It is certainly desirable to have a domestic forum to resolve the
disputes. The registration process itself may contain a provision to
refer such disputes to a named arbitration tribunal.
16.2 It is certainly desirable to spell out the dispute resolution
procedures and the parameters. Other remedies such as monetary
compensation will have to be pursued by the parties independently as the
registry need not unnecessarily be involved in such litigation.
16.3 Cyberpiracy is a larger issue and need not be combined with domain
name disputes which are only of two kinds and very limited in scope. A
separate system has to be evolved to deal with cyberprivacy.
16.4 The extent of registry's involvement will only to the extent of
acceptance of other distinctive addition in the case of subsequent
application with the same name to resolve the conflict between two
genuine applicants. In the case of cybersquatting, the dispute itself
will be triggered by the registry revoking the registration and it will
have to defend its action in the arbitration proceedings.
16.5 The relevant registrar has to accept service where he is a party
as in the cybersquatting cases. If all the processes are routed
through the relevant registrar it is conducive to have a perfect record
of the proceedings and therefore desirable. There should be no
difficulty as such process can be agreed to be by email even while
applying for registration.
16.6 A panel of arbitrators can be maintained by each registrar to whom
the disputes can be referred, the parties being given the choice to
select one among them.
16.7 The relationship between arbitrators and the courts is now well
defined by the new Arbitration and Conciliation Act 1996 in India which
follows the pattern of the UNCITRAL model law. Most countries are now
falling in line and arbitration procedures are almost standardized
everywhere.
16.8. The dispute has to be resolved only with reference to the rules of
registration which may be formulated clearly.
16.9 The question of suspension comes only in the case of
cybersquatting where immediate switching off is the most effective
deterrent. There need be no suspension in the case of genuine
applicants as it would be contrary to the first come rule.
16.10 the classification of disputes given above obviates the need for
any limitation. In the case of fraud there should be no limitation as
fraud vitiates everything and the registration will be ab initio void.
16.11 There is no need for appeal procedures as the Arbitration law
takes care of it.
16.12 Costs follow the event and should be borne by the loser.
16.13. Security requirements relate to the identity of the registrar and
the claimants while resolving disputes on line. There should be some
way of ensuring that no imposter interferes and such security systems
are already available for adoption.
C. Process for the protection of famous and well known marks: This
question arises only when well known marks are not registered earlier as
domain names and another person having the same name registers first.
The mark is surely protected in the country of origin but its global
presence is preempted by someone else of the same name. If the famous
is not enterprising enough to be the first it has to pay the price for
getting it later unless the person who has registered doesn't have that
mark at all anywhere and has registered only to make a fast buck. The
only way is to have proper screening at the time of registration.
Hope these comments will be of some use to you. If you need any
further response please do not hesitate to contact me.
Warm regards
Rangarajan
Former Judge, High Court of Andhra Pradesh, Hyderabad, India
Next message: ceo@MElbourneIT.com.au: "WIPO RFC-2"
Previous message: mikej@sn.apc.org: "WIPO RFC-2"