browse comments: Comments of DNRC

Comments of DNRC
Mikki Barry (ooblick@netpolicy.com)
Fri, 6 Nov 1998 11:59:25 -0500

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COMMENTS OF THE DOMAIN NAME RIGHTS COALITION ON WIPO RFC-2

The Domain Name Rights Coalition (DNRC) hereby submits its comments in this
WIPO proceeding. As noted in its comments to RFC-1, DNRC continues to
protest WIPO's expansion of this proceeding beyond the narrow focus on
cyberpiracy envisioned by the White Paper into a process designed to
develop an all-encompassing global system of Internet governance.

As part of this process, DNRC Acting General Counsel (then Assistant
General Counsel) Harold Feld attended the Washington consultative meeting.
At that meeting, Mr. Feld spoke at length regarding the concerns of the
DNRC in this process and the course of action being urged by many incumbent
stakeholders. Those comments are part of the record, and DNRC sees no
reason to repeat them here except in summary form.

Summary:

DNRC again reminds WIPO that any system of dispute resolution must
recognize the following basic principles: First, while many domain names
are used for branding and trademark purposes, the vast majority are not.
The equation which states that a domain name is identical to a trademark,
or is presumed to be used for the same purpose, is false.

Second, traditional trademark law represents a careful balance between
commercial necessity and the recognition that no one can have a monopoly on
the basic words that make up the human vocabulary. Traditional trademark
law incorporates within it a recognition of other rights, such as common
law trademark or fair use. It recognizes limitations based on marketing
channels, intent of the user, and a variety of other factors too complex
and numerous to list. We alter this balance at our peril. Accordingly,
trademark owners should enjoy no *greater* rights in cyberspace than in the
physical world. Calls for presumptions in favor of trademark owners, or
for broadening protection for famous marks to include strings which would
not be found deceptively similar in the physical world, must be rejected.

Finally, in the physical world, traditional trademark law must bow to
rights of free speech and expression. The fundamental right to free
expression is not limited to the United States alone, but is incorporated
in the United Nations Universal Declaration of Human Rights, in the
European Union's Human Rights Convention, in the South African Development
Community's Windhoek Declaration, and in binding international documents
around the world. WIPO should affirm its commitment to this principle
openly.

Comments:

DNRC believes that world courts are adequately addressing the problems of
the applications of trademark law to cyberspace. Indeed, a recent study by
Prof. Milton Mueller of the University of Syracuse suggests that in cases
of cyberpiracy trademark holders have won every single case. As a result,
it is difficult to see why new protections, not governed by the due process
concerns that protect all parties in a litigation setting, are required.
The traditional answer to this is that litigation is time consuming and
expensive. While this is true, it is no more true in the area of
intellectual property rights than it is in the area of contract litigation
or tort litigation. If expense isto be the sole justification for creating
a streamlined domain name process, then we must consider abolishing all
forms of litigation in favor of a mandatory arbitration process that
emphasizes administrative ease and cost over due process. Not
surprisingly, most WIPO signatories would be against that premise.

Second: DNRC opposes the imposition of waiting periods, pre-clearances, or
other trademark-like mechanisms on domain name registrants. These
suggestions proceed from a faulty premise, that trademarks and domain names
are equivalent, therefore protections common in the trademark world should
be imported into the domain name world. We will leave aside, for the
moment, the obvious flaw in this reasoning, that domain names are mere
mnemonics for internet protocol numbers, not trademarks. Even though it is
true that some domain names are also used as brand identifiers, this is the
exception and not the rule. The Internet is still a medium of
communication first and of commerce second. The communications aspect of
the Internet has been underscored by the United States Supreme Court in
ACLU v. Reno. The proposed solutions of waiting periods, pre-clearances,
or other trademark-like mechanisms present several practical problems. For
example, at the time of this writing, a hurricane called Mitch has battered
the Caribbean and Central America, leaving an estimated 7,000 dead. Entire
villages have been washed away, millions are without power or running
water, and the entire region is in urgent need of relief. As many have
commented, the Internet is a powerful tool for situations like this. It
allows people to organize rescue efforts, relief efforts, and help
survivors and family locate one another. Imagine if those trying to set up
websites to facilitate this had to wait 30-days to pre-clear the name?
Valuable services that provide world wide communications would be
compromised.

Imposing pre-clearances, affirmations or other "protections" urged by the
trademark lobby will also create headaches for registries, driving up the
cost of domain names and creating further delay. It will also discourage
the millions of individuals and small businesses who currently register
names from doing so. WIPO should consider that, for all its flaws, real or
imagined, the current system works. It has scaled in the space of five
years from a system that processed relatively few domain names to one which
processes many thousands a month. Delays are minimal, and the process is
so simple to use that an 11-year old boy can receive a domain name for a
birthday present. It is so open that a resident of any country in the
world can receive a domain name. DNRC believes that the existing system's
scalability, affordability, ease of use, and universal access will be the
first casualties of any sort of pre-clearance process or increase in the
complexity of registrations. Unlike many others, however, DNRC does not
believe that this is acceptable "collateral damage" if it provides
trademark holders with greater security.

DNRC cautions that even a certification that the registrant knows of no
other entity with a superior claim to the name, a certification urged by
many sophisticated businesses and intellectual property lawyers as imposing
virtually no burden on registrants, may discourage legitimate use by
unsophisticated parties. How can a college student in Kenya, or a woman
starting a business in Michigan, or a disaster relief volunteer, know
whether no one else has a superior right? If we believe that people try to
fill out forms honestly and to the best of their ability, the very basis of
such a certification, how will unsophisticated parties be able to sign in
good conscience? That those who participate in this process, an
unrepresentative group dominated by sophisticated parties trained in
economic and legal niceties, do not consider a particular certification
overly burdensome hardly speaks volumes to users at large.

Third: DNRC cautions against the danger of developing a "guild mentality;"
an idea that this proceeding should be used to allow those with similar
interests to govern the Internet resource to promote the interests of
others like themselves. This mentality evidences itself in the idea that
new gTLDs should be added only after their self-interests are addressed.
An example is the notion that we should balance the burden on existing
stakeholders, such as the cost of policing for trademark infringements,
before allowing any new gTLDs to develop. Indeed, some have proposed here
and elsewhere new TLDs should only be permitted if their addition enhances
commerce as a whole, i.e., confers some benefit on the existing
stakeholders empowered to make the decision. This idea negates the entire
idea of the Internet as an independent base of communications and of
commerce.

The World Wide Web, with its easy to use graphical user interface, is the
engine of electronic commerce. But would this application even have come
into being had it been subject to this test of "enhancing commerce?" How
could a nascent Netscape, for example, have demonstrated that the benefits
of the web would offset the risk to copyright and trademark holders?
Indeed, billion dollar multi-national companies that now "enhance
commerce," such as Netscape, Yahoo, and Amazon.com, did not even exist five
years ago. How could they, in advance, have proved that they were
developing an entire new sector of the world economy? What further
economic engines will we cut off if we require entrepreneurs and other new
entrants to demonstrate that they will somehow "enhance commerce" before
permitting them to take their chances with new TLDs?

It is often stated that the private sector must lead in Internet
self-regulation because the heavy hand of government would stifle this
vibrant medium. Yet we now see calls for establishing a system of global
Internet governance that would carefully screen new entrants to ensure they
pose no threat to incumbents. DNRC must ask, why is regulation by a guild
superior to regulation by a government? Governments, at least, have an
explicit mandate to protect their citizens and advance their interests.
Guilds, however, have no interest other than preserving the status quo.

Fourth: DNRC again notes that there is no crisis requiring the immediate,
drastic action proposed by many participants in this proceeding.
Electronic commerce, a term unheard of five years ago, is now a
multi-billion dollar concern. The number of domain name registrations
continues to climb exponentially, and Internet access is penetrating
throughout the world. Indeed, in a few short years, we have gone from
thinking of Internet access as an incidental privilege of a few academics
to a right that world governments should actively foster. How then, can
commenters persist in maintaining that this medium is in crisis, that
electronic commerce can never truly develop in the absence of draconian
trademark protections? How can anyone maintain, as the parties agitating
for increased trademark protection have done for over two years, that the
medium will collapse in a tangled mass of consumer mistrust, scams, and
pornography if we do not act immediately to guarantee protections to
trademark holders that they do not have in physical space?

DNRC believes that the opposite is, in fact, true. That burdening the
system with complex and unnecessary protections that favor existing
stakeholders will strangle the Internet goose that is currently laying so
many golden eggs. The universal access the current system facilitates
allows millions to offer new services, create new businesses, or develop
new online communities. It is this ease of access and vibrancy that has
made the Internet what it is today, not the ability of consumers to find
"Delta Airlines" or "Delta Dental" online. Conversely, the inability of
consumers to type "delta.com" and leap to the delta of their choice has not
harmed the development of the medium in the slightest.

Finally, DNRC wishes to raise a point in response to discussion which took
place at the Washington meeting on October 1, 1998. At that time, DNRC
again raised its concern regarding the scope of this proceeding. Some of
the panel of experts suggested that the White Paper could not constrain
this process, as it proceeds under the auspices of WIPO. That the United
States may have initiated this process, but that in seeking international
help and invoking WIPO the United States ceded control of the process and
its ability to set such limits.

DNRC responds to this in two ways. First, DNRC believes that, to the
extent this process proceeds under WIPO's own auspices and initiative, and
departs from the White Paper, it must make this demarcation clear. In
particular, WIPO must clarify that this process can claim no particular
influence in determinations by the new corporation proposed by the White
Paper. It is not part of the White Paper; it is simply one more study. It
deserves no more special status than the consultations of the Canadian
government with its people, or the study by the National Research Council
of the United States.

Second, WIPO would do well to consider the institutional harm it does
itself by taking this course. In determining that the suggestion of a
member state is a mere starting point, WIPO sends a message to member
states that WIPO cannot be trusted. Invoking the WIPO process becomes,
after this, a dangerous game. A requestor cannot trust WIPO to remain
within the bounds strictly delineated by the requestor. In fact, the
opposite may occur. WIPO may chose to exceed those bounds, and investigate
areas the requestor specifically felt should be addressed elsewhere.

This has happened here. The White Paper, as DNRC noted last time, limited
the study to cyberpiracy. The White Paper also made it clear that no one
should attempt to set up a global solution or try to establish a single,
monolithic Internet governance system. Yet this proceeding has broadened
its scope beyond cyberpiracy, and seeks to develop precisely such a
monolithic system. How shall future governments trust WIPO, with this
proceeding as an object example?

_____________________
Harold Feld
Acting General Counsel
Domain Name Rights
Coalition

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