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WIPO RFC-3
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Fri, 12 Mar 1999 09:48:42 -0500

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Attachment: http://arbiter.wipo.int/processes/process1/rfc/dns_attachments/rfc3/attach921250122.doc

Request for Comments on the Interim Report of the WIPO Internet Domain Name Process (WIPO RFC-3)

Reply from the National Post and Telecom Agency

The National Post and Telecom Agency (PTS) is the Swedish regulatory authority for the postal and telecom markets. Regulatory and supervisory activities are conducted with the aim of safeguarding the interests of postal and telecom consumers. It is the further responsibility of the PTS to ensure the efficient working of the telecommunication market from the perspectives of competition, regional balance and consumer safeguards.

The PTS welcomes the invitation to submit comments on the Interim Report and its draft recommendations. The PTS has previously submitted comments on WIPO RFC-2 and RFC-2. A representative of the Agency has also participated at the WIPO consultation on the Interim Report in Brussels, Belgium on February 17, 1999.

Comments will be formulated in adherence with the chapter structure of the RFC-3.

Chapter 1 - The Internet, domain names and the WIPO process

WIPO delineates several principles which have guided the formulation of the recommendations of RFC-3 (paragraphs 31-36). Among these are
- the recognition that the goal of the WIPO Process is not to create new rights of intellectual property, nor to accord greater protection to intellectual property in cyberspace than that which exists elsewhere
- the avoidance of any diminution in, or otherwise adverse affect on the enjoyment of other agreed rights, such as the rights guaranteed in the Universal Declaration of Human Rights
- the general recognition that authority over the use and management of ccTLDs falls within the sovereign competence of the States to which they relate.
The PTS attaches great importance to the upholding of these principles. The RFC-3 appears to waver at times in keeping to these stated guidelines. For example, the Interim Report seems to presuppose a right to register a domain name corresponding to (very broadly defined) intellectual property (IP) rights (paragraph 244). The PTS is unaware of any such existing right to register. Further, the right to free speech in non-commercial activities such as parody or political expression risks being subjugated to the interests of holders of trademarks or what may be construed as IP rights (paragraph 244). Lastly, WIPO suggests that consideration be given to the application of the recommendations in this Report to all open TLDs, including ccTLDs. It is the firm opinion of the PTS that in the absence of an international treaty or such similar agreement, states retain exclusive rights to set policy for their ccTLDs.

Chapter 2 - Avoiding disjunction between cyberspace and the rest of the world

WIPO recommends (paragraph 53 i) that the domain name registration contract should contain a representation that, to the best of the applicant's knowledge and belief, the registration of the domain name does not interfere with or infringe the intellectual property rights of another party. The PTS suggests that this representation be omitted. The notion of "interfering with" is unduly broad, and "intellectual property rights" is not a sufficiently internationally homogeneous concept.

As an aside, it may be remarked that the final Report would benefit from an attempt to define "intellectual property rights" for the purposes of the recommendations to ICANN.

Chapter 2 further recommends terms on which contact information for domain name holders would be made available to others. It is not clear from RFC-3 how these terms are compatible with European Union legislation on data protection and privacy. At the aforementioned WIPO consultation in Brussels, an EU official made a valiant attempt to clarify this particular question, but it is doubtful as to with what success. WIPO requests comments (paragraph 89) on limits on access to any database containing contact details of domain name holders. Keeping in memory the expected future prevalence of privately held domains, the PTS urges the stipulation of stringent conditions to the revelation of private contact information, unless the domain holder has expressed a request for openness.

A take-down procedure is recommended (paragraph 99, 101) whereby a registration authority would be required to cancel a domain name registration under certain circumstances where contact information is inaccurate or unreliable. Such a circumstance is where "the infringement of an intellectual property right is claimed". Here it may be remarked that "infringement" and "intellectual property right" are worryingly nebulous terms. It might further be required that cause be shown or made credible for a take-down to be implemented.

Chapter 3 - Resolving conflicts in a multijurisdictional world

The PTS believes that developing approaches, other than court litigation, for the resolution of domain name disputes involving internationally recognised IP rights is beneficial. Such approaches may include various forms of administrative procedures, mediation and arbitration. Recourse to these alternative methods must however, as WIPO suggests (paragraph 115), be completely voluntary.

WIPO recommends (paragraph 119) the introduction of a submission to jurisdiction in the domain name registration contract. The consequences of the WIPO suggestion would be that a domain holder would be required to agree to a foreign jurisdiction, and to accept the possibility to be sued in a court in another country, perhaps far away, with - to him - unfamiliar procedures and language. The PTS suggests limiting jurisdiction to the country of domicile of the domain holder.

In the opinion of the PTS, submitting to an alternative procedure should not be made a prerequisite condition to obtaining a domain name registration (paragraph 145). The most important reason for this point of view are the difficulties involved in establishing rules for an ADR that guarantees necessary safeguards as to predictability and legal certainty in deciding disputes. WIPO has endeavoured to formulate guiding principles (paragraph 199) which could serve as a basis of reference for decision-makers in ADRs. These principles are however unsatisfactory (see detailed analysis in Prof. A. Michael Froomkin's essay " A Critique of WIPO's RFC 3", sect. 155-164), and it is difficult to se how they could be improved in the short-term perspective.

Opportunity for legal action must be guaranteed the loser as well as the winner of an alternative dispute resolution.

Suspension or cancellation of a domain name registration should only be enacted when any of the following conditions are present:
Usage of the domain name is in clear violation of the registration contract.
Usage of the domain name in question has been the subject of a court ruling or decision of a relevant governmental authority.
Usage of the domain name in question is in clear violation of applicable law, and circumstances do not permit waiting for a ruling from a court or authority. Possibly the registry may only apply this last condition under pain of liability, should the legal system arrive at a different finding as to whether usage entailed breaking the law.

Chapter 4 - The problem of notoriety: Famous and well-known marks

The PTS supports measures to provide protection of famous and well-known trademarks. However, the WIPO suggestion of introducing a mechanism whereby such marks can be excluded from registration appears unpractical, given the fact that there exists no consensus procedure for identifying these marks. The question of creating special protections in the DNS for famous and well-known marks should be deferred until the international organisations presently seeking to define what constitutes a globally famous mark have reached firm and widely accepted conclusions.

Chapter 5 - New generic top-level domains

In the opinion of the PTS, the introduction of new gTLDs should be encouraged. Much of the friction as regards use of domain names is the consequence of an artificial shortage of attractive domain names. If there were a substantial number of alternatives to the .com-domain, and Internet users become aware of the fact that any Internet address is substantially arbitrary, then the understandable concern of trademark owners that consumers will search the .com domain for their mark will be greatly alleviated. The introduction of a large number of - differentiated - gTLDs would contribute to the understanding among users that the presence of a particular word in a domain name does not necessarily pertain to a company whose product may share that name. Many suggestions have been put forward regarding specialised gTLDs, with variations of open or moderated structures. In the view of the PTS, the development of the Internet would benefit from allowing some experimentation with the name space. Besides introducing new
, ordered gTLDs, opportunity should also be given to market players to try their own ideas to add value to the name space.

Nils Gunnar Billinger
Director General

(A hard copy of this reply will be sent by ordinary mail)

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