Interim Report wipo rfc-3
Philippe Youkharibache (youkha@inpharmatics.com)
Fri, 19 Mar 1999 16:45:56 -0800
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Hello,
There was recently a posting of a document by Michael Froomkin entitled
"A Critique of WIPO's RFC 3" which is available from
http://www.law.miami.edu/~amf, reviewing Major Flaws in the WIPO Domain
Name Proposal, and in particular its bias towards Trademark owners.
There was also discussion a few days ago on this list
[dnsproc-en@wipo2.wipo.int] about the potential of legally stealing a
domain name from its current owner, by registering a trademark after a
domain name has been registered, and then claim "intellectual property
rights" on the domain name.
Every domain name owner should be concerned! WIPO has extended to March
19 the deadline for comments on the RFC-3 WIPO Internet domain name
interim report (http://wipo2.wipo.int/process/eng/rfc_3.html). I am,
needless to say, not a legal expert, but just a domain-name owner, and
I'd like to take this opportunity to post my comment.
The WIPO document (chapter 2) claims to "[39.] Address the way in which
to deal with the consequent conflicts that have arisen between domain
names and other recognized forms of identifiers that are protected by
intellectual property. Insofar as practical, an endeavor should be made
to avoid having two autonomous systems that live in ignorance of each
other: the DNS in cyberspace, and the intellectual property system of
identifiers as developed before the arrival of the Internet" ... In
other words how to protect "other recognized forms of identifiers that
are protected by intellectual property" against the new kid on the block
... the internet"
It might be time to "recognize" Internet domain names as a form of
intellectual property and to protect it as well!
Domain names as intellectual property
=====================================
A domain name, by its very nature, embodies intellectual property.
Domain names ARE IPSO FACTO A NEW FORM OF INTELLECTUAL PROPERTY. A
domain name owner should be considered as having "intellectual property
rights". We should not discuss domain names vs. intellectual property;
we should discuss relations among them, including - on an equal footing
- domain names and trademarks. Can domain names and trademark coexist
without a symmetrical rule? A commercial domain name registration is,
to most of those who file, a declaration of intent to use a name (de
facto a mark) in commerce.
It is obvious that we need a rule on first to file - within all
intellectual property vehicles - including domain names and trademarks.
Such policy must be clearly stated among/between ALL IP vehicles to
avoid both confusion and iniquity. For example, if a trademark exists in
Jan 99 on name XXX - one should not be able to register XXX.com after
that date without written consent of the trademark owner. Vice versa:
if a domain name has been registered on name XXX.com, .net, or .org on
Jan 99, one should not be able to register a trademark on XXX after that
date without written consent of the domain name owner.
Additional domain extension .net, .org, .country_code (i.e. TLDs) do not
solve any problem, they split "territories" with borders that do not
exist in cyberspace. They make the matter worse ...
Of course, practicality is an issue. In the WIPO document, chapter 2,
one can read "[76.] Searches Prior to Registration. Almost unanimously,
commentators agreed that no trademark or other searches should be
required as a pre-condition to registration of a domain name, whether
they are performed by the registration authorities or by the domain name
applicants themselves. Particularly in an international context, the
requirement of searches prior to the registration of a domain name was
generally considered to be unrealistic and conducive of unnecessary
delays in the registration process."
It is easy and free to check if a domain name has been registered,
before attempting to register a trademark ... It is also becoming easier
- and free - to check if trademarks have been registered, at least in
the US (http://www.uspto.gov). Even if that search does not cover all
trademarks, it helps to establish good faith.
Because in the early days of the internet explosion, some trademark
owners have been abused by "deliberate, bad faith registration as domain
names of well-known trademarks in the hope of being able to sell the
domain names to the owners", the current WIPO RFC-3 report focuses
mainly on that issue. But what about leaving the door open to predators
in the other direction: those who register trademarks in the hope of
stealing domain names from their current owners?
Thank you for your attention.
Philippe Youkharibache, Ph.D., President
==============================================================
InPharmatics Corp. youkha@inpharmatics.com
11440 W. Bernardo Court, Suite 300 tel: (619) 530 8550
San Diego, CA 92127 fax: (619) 530 8555
==============================================================
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