browse comments: WIPO RFC-3

WIPO RFC-3
pgeller@law.usc.edu
Fri, 12 Mar 1999 13:44:01 -0500

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The WIPO Interim Report systematically analyzes a large range of complex issues and options concerning domain names. However, to achieve the goal of cheap and easy dispute resolution, it now seems imperative to focus its proposals on narrow issues and simple rules. Indeed, the narrower the issues and the simpler the rules, the easier it will be for the parties to undertake the process or settle, and the more they will be equally matched. These comments address the end of Chapter 3, paragraphs 196 through 200, of the WIPO Interim Report. They deal with the problem of resolving conflicts of laws concerning domain names.

Unfortunately, conflicts of laws threaten to make domain-name disputes quite complicated. In such disputes, communications cross one border after another in a patchwork of jurisdictions, say, Argentina, Brazil, China, France, Germany, etc. But whose law(s) should apply to govern network access to domain names at issue in a dispute, Argentina's, Brazil's, China's, France's, Germany's, etc.? Indeed, domain names often target, and almost always reach, markets in all the countries covered by the Internet, so that the laws of all these countries arguably apply to any dispute. Given the patchwork of national laws, all or most of these laws tend to enter into proliferating conflicts relative to global, network uses. National legal systems have developed different approaches to resolving conflicts of laws in patchwork cases. None of them leads to reliable results in network cases, as I explain in articles sampled in my web-site. It would then be counter-productive to refer dispute resolution to approaches th
at national courts might follow. The process would thus only be driven back into old patchwork labyrinths. Rather, it needs a simpler, network approach.

For this reason, WIPO is to be commended for proposing to minimize conflicts by harmonizing legal rules. Its proposals are implicitly based on a premise which, if expressly stressed, might help to make the process of dispute resolution simpler and stronger. That is, the international treaties concerning intellectual property control globally applicable substantive rules, as well as choice-of-law rules, in the field. All solutions to conflicts of laws in domain-name disputes, I submit, should therefore be expressly based on a formulation such as the following: IN CHOOSING THE RULES TO RESOLVE ANY ISSUE CONCERNING INTELLECTUAL PROPERTY, THE DECISION-MAKER SHALL ONLY REFER TO THE TRIPS AGREEMENT AND TO TREATIES WHICH THIS TRIPS AGREEMENT INCORPORATES. WHERE THIS SET OF TREATIES PROVIDES ANY SUBSTANTIVE RULE DISPOSITIVE OF A GIVEN ISSUE CONCERNING INTELLECTUAL PROPERTY, SUCH RULE APPLIES TO THAT ISSUE. WHEN NO SUCH RULE IS AVAILABLE, THIS SET OF TREATIES SHALL BE THE ONLY SOURCE OF CHOICE-OF-LAW RULES CO
NCERNING INTELLECTUAL PROPERTY. WHERE OTHER ISSUES ARISE, THE DECISION-MAKER SHALL REFER TO OTHER INTERNATIONAL INSTRUMENTS ON POINT FOR APPLICABLE RULES.

This proposal simply limits the decision-maker to rules on which there is already consensus in treaty form. Indeed, on most issues of intellectual property likely to arise in domain-name disputes, the treaties provide for relatively straight-forward rules. For example, on claims of unfair competition in domain-name disputes, Article 10bis of the Paris Convention, incorporated into the TRIPs Agreement, could be consulted. Under the rules set out in this provision, the name most likely to confuse the public in the light of prior usage would be disfavored for registration. On other issues, ranging from commercial law to human rights such as privacy, there are also relevant international treaties. Note that this proposal forces the decision-maker to move beyond juggling various factors in resolving any given set of issues. Where the treaties themselves lead to conflicts, the superior treaty or rule would prevail. For example, the TRIPs Agreement would prevail over the Paris Convention in such a case.

Of course, the system of domain names should be so devised to minimize the frequency with which issues arise in disputes. For example, to the extent that domain names are increasingly differentiated, the risks of confusing the public with similar names will decrease. Privacy issues would hopefully be mooted by procedures that would safeguard privacy interests, without jeopardizing transparency in commercial and organizational domains where personal privacy either is not at stake or may be waived.

Hopefully, these brief comments, which address a traditionally complex question, will point the WIPO initiative in the direction of an optimally simple, user-friendly system of dispute resolution concerning the registration of domain names.

Paul Edward Geller
Attorney, Los Angeles (telephone: 1.310.455.2087)
Adjunct Professor, University of Southern California Law School
Web site open starting mid-March: www-bcf.usc.edu/~pgeller

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