Transcript: Hyderabad regional consultation
Welcomgroup Grand Kakatiya Hotel & Towers
October 22, 1998
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|San Francisco, California,
(Mr. Subhash Chandra, Deputy Secretary, Department of Industrial Development, Ministry of Industry, Government of India): On behalf of the Government of India, its my pleasant duty and privilege to welcome all of you to this one day regional consultation on the Internet Domain Name Process organized by the World Intellectual Property Organization, Geneva. The issue as you all know is complex and challenging, but then so are most issues related to intellectual property. This is part of a series of regional consultations initiated by the WIPO which will formulate an approach to the subject based upon the concerns and the suggestions which will be garnered from the stakeholders from around the world. It is indeed a matter of great satisfaction that this event is being organized in Hyderabad, a city which is proving to be a bench mark in the IT field in many ways. We are grateful to the Government of Andhra Pradesh for agreeing to host the consultation.
I extend a warm welcome to Mr. Richard Wilder, Director, Office of Legal and Organization Affairs at WIPO. He was here with the WIPO mission on the global information network a couple of months ago and some of you would perhaps have met him then. He will be providing an overview of the Domain Name Process as it has been visualized by WIPO, both in his introductory remarks and subsequently in a slightly more detailed overview which he will be providing. Ms. Lucinda Jones is also from WIPO, Geneva and handles electronic commerce in the Office of the Legal and Organization Affairs as a Consultant. I extend a warm welcome to her also. I also welcome Dr. Ousmane Kane, Executive Director of the African Regional Centre for Technology who is accompanying the team. We are extremely happy to have amidst us Mr. J. Satyanarayana, Inspector General of Stamps and Registrations, Government of Andhra Pradesh and Ex-Officiol, Secretary, Department of Information Technology who has kindly agreed to inaugurate this discussion today. On behalf of all of us a very warm welcome sir. On this occasion I also welcome Mr. J.H. Chowdary, Director of the Software Technology Park, Hyderabad, who has graciously agreed to preside over this inaugural program. I also welcome Mr. Sirini Raju, Executive Director of Satyam Computer Services Ltd., who in association with the Government of Andhra Pradesh has helped in making today's event possible. I am sure the discussions will be meaningful and thought provoking and with these few words I welcome all of you once again and wish the deliberations all success. Thank you.
(Mr. Richard Wilder, Chairperson, Director, Office of Legal and Organization Affairs, WIPO, Geneva): Ladies and gentlemen, I thank you for the opportunity of appearing here today at the WIPO Internet Domain Names Process, Hyderabad Regional Consultation. I wish to thank the Governments of India and of the State of Andhra Pradesh for kindly having offered to host this regional consultation. Without their support our meeting today would not have been possible. I also wish to thank Satyam Computer Services for the support of today's consultation.
We are here today to discuss the relationship between intellectual property and Domain Names. It is an important issue, but only one of many that have arisen alongside the rise of electronic commerce. Electronic Commerce is evolving rapidly, both in its nature as well as in its size. Perhaps, the most important aspect of electronic commerce and that which distinguishes it from commerce in the physical world is its global reach. Now, for the first time, businesses no matter how small can have access to the world market. Customers no matter where they are located have access to the global service and goods providers from throughout the world. Governments in developed and developing countries alike are helping their people take advantage of electronic commerce as a tool through which services and information can be delivered. And that is certainly very true here in India and in the state of Andhra Pradesh. Individuals, companies, governments and inter-governmental organizations like WIPO are reacting to these opportunities. Individuals are changing the face of information dissemination and retailing, more and more people are seeking news and financial information through the Internet. People are better informed as a consequence. They also have access to retailers of services and goods throughout the world. Taking the new businesses that are growing up, such as amazon.com, the bookseller, are not only taking business from their old rivals but are creating whole new models for doing business. And this is just the beginning, in the near future the way in which we work, entertain ourselves, inform ourselves will be changing radically. Of course, such fundamental changes in technology also bring changes in the ways that we look at the world. Governments are reacting as I indicated here in India and Andhra Pradesh, the governments are working very hard to establish an electronic infra-structure through which information could be disseminated and through which people can better participate in the process of government.
Let's turn for a moment to some of the activities of the World Intellectual Property Organization. WIPO is currently involved in developments in all areas of intellectual property as it relates to electronic commerce. This includes copyright protection, trademark protection, patent protection and other areas. I am not going to go into detail on these aspects at this time. But, what I want to do is point out one broad area of enterprise in which we are involved, that was recently approved by the Assemblies of the Member States of WIPO. Our broadest initiative is a focus on the topic of electronic commerce and its implications for intellectual property. This focus will involve three elements. First, there will be regional consultations much like this one to generate greater awareness of the ways in which electronic commerce is effecting intellectual property and to assist in formulating timely and swift responses. Second, there will be a major international conference on the topic of electronic commerce in Geneva next year and third, there will be Issue Papers prepared and published to define more clearly the impact of electronic commerce on the intellectual property system. Thus, I think you can see that we are embarking on a very broad study of electronic commerce and its implications for intellectual property rights. Today however, in the consultation that we are conducting here in Hyderabad we are looking at one aspect of the impact of electronic commerce on intellectual property. And that is the impact of the Domain Name System on the system for the protection of trademarks. Now, after our introduction here this morning I am going to be going into more detail as to the history of the Domain Name Process, what we are going to be accomplishing here today and how that is going to fit in to the overall project that WIPO is engaged in. We are very pleased to have this opportunity to appear before you today and to participate in this regional consultation. I want to emphasize, and I will do this again and again, that the purpose of this consultation is to hear your views on the process, your views on the relationship between trademarks and domain names and your views as to how the possible conflicts that exist can be resolved. I hope for your active participation and I thank you very much for being here today. Thank you.
(Mr. Chandra): I request Mr. Srini Raju to give his remarks.
(Mr. Srini Raju, Executive Director of Satyam Computers): Good morning ladies and gentlemen. We thank you Mr. Wilder from WIPO for agreeing to come to Hyderabad for this seminar here. We are really excited about you considering Hyderabad as a location that you would like to have as your future location. We hope you consider this city very seriously. Now, just to give some brief discussions on the status of the Internet in India. Today, we have approximately about 100,000 users and that is a little bit of an underestimation because most of the organizations like the IT companies in India have probably one domain name and many users. Some like us probably have 3000 users, but we have only one domain name. And I am sure if you look at all these software companies and other users of IT in India we would have certainly a lot more than 100,000 users, but this 100,000 number comes from the Government of India. And also we expect that the number of users in India should be the same as there are today in the U.S. in the next ten years time. So, if we go by the same calculation ratio and if even a few percent of us, like five per cent of the Indian population have Internet connection the next ten years, we probably will have about 50 million users from this country itself. Now, with the number of users multiplying across the world, the biggest problem we are facing in the industry everyday is domain name registration. And you ask for a certain name, like somebody like us or IBM, lets take an example, they work in all countries, they have ibm.com in the U.S., but when they tried to do the same thing in India and other countries it is not available. Somebody else has registered in those countries as probably ib.india.com. That maybe a bad example, because IBM does have the one in India, but maybe somebody like us do face that problem because we are a small company growing very fast. Initially we don't register worldwide, we probably register in the countries where we are doing a business and as you expand you look at registering in the companies that you will be doing business in, in the future, but where it is not available because somebody has already done so.
The second problem is, there are some innovative entrepreneurs who see the upcoming companies across the world and they register ahead of the time. So, that when you want it you will have to go to them and pay some money to buy the domain name from them. This is a big issue. I do know that one entrepreneur who just happened to be from Hyderabad, did register all the names like tata.com, burla.com and everything in the U.S. and when they wanted to have their domain names in the U.S. it was not available. And at least one company I know that refused to pay them money and changed the name, they have taken it a little differently. So, that is also, how to control that kind of thing. If somebody just pays $175 do we just give any name that the person wants? So, there must be some process of controlling that one. But at the same time, the Internet has grown because of the freedom that is being given to it, so we should not curtail the strengths of the process that really developed the Internet. At the same time we should have some kind of process that would put everything in order. Similarly, in terms of the naming conventions. Because the whole Internet started in the U.S., everything is .com, .org kind of thing followed by the company name. But, whereas for other countries which have started getting into the Internet business it has an extension. For example, IBM in the U.S. will be ibm.com, in India it will be ibm.in and in another country it will be something else. So, when you do some kind of overhauling of the system it will be nice if you have it in such a way that there is a global naming convention. Its not where everybody takes their own way of doing it and I don't see any other organization better than WIPO to take leadership of this and do the same thing. And I also know to some extent, that even in the U.S. Internic has sub-contracted the whole domain name registration to a private company there, so somebody like you offering such a service for competitive pricing I am sure they would be very happy to hand over the business to you.
Now, in the Indian perspective one more issue here is that even though we have addresses like ibm.in, unfortunately every message that starts in India, even if I have to send a message from my say Hyderabad office to Madras office it still has to go to the U.S. and come back. Because there is no regional hub here which would bounce the messages between the users within India. I know when you have to go out anyway you have to go out to the international regional hubs, but at least for India we could have a regional hub here. I do know that it is not a function of WIPO, but at the same time I just wanted to bring it to their attention so that some of our colleagues who have been coordinating these activities could consider having such a thing in India itself.
Finally, I would like to request that my friend from the Government of India, and we from the industry here in Hyderabad will totally support you to set up a local regional centre here in our IT, that is the triple IT and whatever it is required to be done we would do it and we would request you to please consider setting up the WIPO Center for India in Hyderabad. Thank you.
(Mr.Chandra): Thank you Mr. Raju. Now, I request Mr. Satyanarayana who is the Ex-Officio Secretary, Department of Information Technology. In fact I was told that he has been awarded by the AP Cabinet yesterday for his special effort in computerizing all the land registration processes in the state of Andhra Pradesh. Let us all congratulate him for receiving this award. He has done extensive work when he was the Commissioner of Taxes and also as the Commissioner of the Land, Revenue and other department which he is currently holding. He is a very important officer in the State Government who is spearheading all the IT implementation activities. Now, I request him to kindly inaugurate the session and also give his inaugural speech. Thank you.
(Mr. Satyanarayana, Secretary, Information Technology): Mr. Chawdary, Mr. Subash Chandra, Mr. Richard Wilder, Mr. A.J. Sawhney, Mr. Srini Raju and distinguished participants. Really, it gives me a very great pleasure to be here today at the Regional Consultation of the Internet Domain Name Process initiated by the World Intellectual Property Organization. For Hyderabad, this is the first major event involving an agency in the U.N. family since our IT efforts gained momentum. This could mark the transfer of Hyderabad from a preferred destination for IT to an equally attractive location for IP. India is a significant contributor of IT manpower and is emerging as a major force in software development. The software industry in the country is moving from development of applications using existing products to being a developer of products. Within India, the state of Andhra Pradesh is emerging as a major center for IT industry and IT education. Our forays into the world of IT have swiftly borne fruit and some of the finest IT companies in the world have chosen Hyderabad as a location for the major software development centers. In the quest to move towards the knowledge society the State Government is also promoting Hyderabad as the centre for other sunrise industries and emerging technologies apart from being a centre of R&D activity. As software products develop in India and in this part of the world, increasing in number and significance, the investment in R&D generates results. Issues related to the protection of intellectual property want to command greater attention. In fact, in the entire country the state of Andhra Pradesh is taking up a lead role in the development of IT, especially in electronic governance. Several major departments have been either fully computerized or are on the cusp of computerizing their departments. So why I mention it here is that when a department is computerized the number of sites that are developed is really on a very large scale. A department like, for instance, Registration of which I am in charge, has 212 center and the commercial tax 220 centers and so on. So, the significance in terms of the naming conventions that we have to adopt will become apparent very soon in registration.
We are therefore delighted that WIPO has given us this opportunity to host this event and to participate in the global consultation Process for addressing intellectual property issues related to Internet Domain Names. With the rapid increase of Internet sites and users the existing systems for its administration are coming under increasingly severe pressure. On one hand, there is an unprecedented increase in numbers and on the other the issues are becoming more and more complex. Some of the issues related to domain names are related to the historical reality of Internet origins the United States. A significant part of their activities related to use and governance of Internet continues to be a resident in the U.S.
A number of countries which are late entrants in this sphere of activity find that space already occupied and overcrowded. Companies, organizations and individuals now entering the world of the Internet face a similar situation. The dichotomy between the legal framework and the systems governing trademarks and domain names is attracting persons and companies eager to capitalize on the existing situation. The extensive growth of commerce in the Internet is only indicative of even more spectacular activity in the future. Getting up and fine tuning the existing systems may be an inadequate response. The choice is either to design and put in place new and vastly improved systems or to risk a collapse with disastrous consequences. There is therefore a demand for change and a demand for smooth transition to the next generation of domain name registration systems. And for procedures careful of meeting the growing requirements of Internets and its users across the globe. Creation of such a new system is not easy. While the existing system has certain drawbacks and deficiencies, its positive features far outweigh the negative ones. The Internet has mitigated the limitations hitherto imposed by the physical location of a person or an organization. National boundaries have not been able to contain the traffic and commerce. The Internet is identified with an unprecedented freedom of expression and has grown to be a huge reservoir of resources which as such belong to no one and yet to everyone of us. Understandably, the process of change in the manner of its use, regulation and governance has generated excitement as well as apprehension. The search for orderliness and regulation has to be balanced against the danger of stifling the freedom that presently characterizes the Internet. Protection of rights for the pioneers has to be considered in conjunction with the interests of the late entrants. Creation of a legal and organizational framework has to take into account the conflicting interests and demands by the various stakeholders. These are some of the issues that have been foremost in the minds of the Internet community. This Process is reserved to the issues that have an intellectual property dimension. Developing a consciousness on such issues is indeed a great task that WIPO has embarked upon. WIPO's document titled RFC-2 presents these issues in an excellent manner and I would like to congratulate those involved in its formulation. In the course of this day, our experts in this round of consultation will have the opportunity to express their points of view and to be a part of this historic process. On behalf of the government of Andhra Pradesh which is hosting this round of consultations along with the Government of India, I welcome all the participants and hope that our deliberations and interventions would contribute to the success of this Process. Thank you.
(Mr..................): Thank you Mr. Satyanarayana.
(Mr. J. Chowdary (?), Director, Software Technology Park): Mr. Satyanarayana, Mr. Richard Wilder, Mr. Subash Gosh, Mr. Subhash Chandra, Mr. Srini Raju, Mr. A.J. Sawhany, distinguished invitees, ladies and gentlemen. I am very happy to be here today to participate in this very important session on the World Intellectual Property Organization, which is organizing this seminar on the Domain Name registration for the Internet. In fact, when we started the Internet activity in India, the Department of Electronics took its lead way back in 1985 when the ARNET project was launched by the Department of Electronics to help the educational institutions in the country to get interconnected and provide the Internet access to them so that they could access the journals, access the information available through the Internet. That is how the Internet was actually started in India. As it happened in other countries, particularly in the U.S.A. in a similar fashion here also it started with the educational community and afterwards the commercial aspects of Internet was realized by many commercial organizations in India. When we started the Software Technology Park in the year 1989, that time nobody was aware in fact particularly the software industry was not really aware the benefits of the Internet. When we wanted to set up a data communication link at Bangalaore, they were only asking some X-25 linkage to them which will be sufficient for transacting their business. By that time in India the Internet fever was not really on. We thought that we will provide a small package switch network to provide the X-25 connectivity so that which will help the software companies to do their business and export the software from India. Very soon we realized that, that network is not sufficient for the software companies and they demanded us to provide the Internet access which can provide the TCPLP protocol connectivity so that they will be able to do more business from India. So, we were thinking how to provide this kind of connectivity for the commercial companies. In fact we were requesting that time Viasanal(?) to provide the Internet access to the small software companies in Bangalore. For various commercial reasons, they said it could never be possible for Viasanal because it is not a business proposition for them to start an Internet mode and provide this access to the small companies under the Software Technology Park. So, then we were forced to set up a dedicated satellite station, initially exclusively meant for providing the Internet access to the software companies in Bangalore. Very soon we realized, we started with only 64K, one single 64 kilobyte circuit which was used on a shared basis by many companies. Initially, the traffic on the 64K was not much, in fact everybody was jumping, the streets were very good and we were getting very good access. Because hardly people used to use the Internet and particularly the web was not popular during those times so most of them used to use the Internet primarily for the e-mail purposes. A similar situation had been even in Hyderabad when we started the one 64K kilobytes Internet circuit during the 91/92. Very soon we realized that the 64 is not sufficient for these customers and they all came to us to say the speeds were not sufficient, we are not able to transact the business and for the same customers we had to double it to 128, within one year. Then again, within six months they came to us, companies like CMC and other companies, no, no, no this speeds are very low and we are not able to get the requisite speeds. So, by that time the people's usage started increasing in those companies. Everybody started realizing what is the importance of Internet and how to access various information available through the Internet. For the same number of customers, we had to again double the Internet access, we made it to 512K. Even 512K became a problem and recently we have upgraded to 1 MB. So, the traffic on the Internet is increasingly going in a forward trend and that has started creating the other problems for the commercial environment as Mr. Srini Raju and others mentioned. People started blocking their trade names before others started using them for their own companies. In fact, even when we announced that Hyderabad was going to be Cyberabad, the next week when I told my network manager why don't you block cyberabad.com or cyberabad.net so that we can create some web sites, it seems that by that time already somebody registered in the name of cyberabad all these domain names. So, people are becoming more and more intelligent and more and more business wary. And also another example, Srini mentioned that a person from Hyderabad registered tata.com and burla.com. I think Hyderabad people are definitely very progressive in this knowledge industry. But, the question is how do we resolve these issues? I think today's meeting is a very important meeting that all of us should actively participate in and take the recommendations back to WIPO and see that something can be set up as the regional centre here or in the national centre at Delhi to resolve these issues.
In fact, the Telecom Commission has taken a decision to set up a committee (end of tape).......... in Bombay. And the committee comprising of the representatives from the Department of Electronics, Department of Telecommunications and members from the industry particularly we wanted to have the private ISP, who are going to come and start their ISP services within the country. We wanted this committee to look into the aspects of domain name registration within the country and resolve certain issues. But unfortunately, the committee has not met and is not really functional yet. They said the committee will start functioning and after one year they will review the existence of this committee whether they are doing the job properly or some more members have to be inducted into the committee. NCST primarily are having the Domain Name Process registration office and with the primary domain server at NCST Bombay. As Mr. Srini Raju mentioned, though the connectivity is not directly from software companies to NCST Bombay, because most of the software companies, they first have to go to U.S.A. and get connected to the Internet there and then again come back to India. So, whenever they have to reach NCST Bombay this is the route that is being followed, but otherwise NCST have their DNS primary server located at their premises and they are looking into the aspects of even providing the name registration to serve the companies in this .in domain. But there are many issues which need to be resolved. We need to have a corporate process, after all Internet is a cooperative network. Unless, all of us cooperate, all the members cooperate in the process to come out with a solution which is going to be useful, and prevent only few individuals from taking all the advantages, I mean blocking all the important domain names and things like that. I think we will need to come out with a process which is going to help everybody. So, I would request all of you today during these deliberations, to express what are the problems that you are facing currently, and if you have any suggestions, any concrete suggestions that can be put forth to the committee in these intensive deliberations. It cannot be a monologue, we need to start the deliberations after this inaugural process, so I request all of you to participate in todays very important seminar and to contribute to the growth of the E-commerce activities through the Internet. With these few remarks I thank the organizers for giving me this opportunity. Thank you.
(Mr. A.J. Sawhney): On behalf of the government of Andhra Pradesh, which is involved in this association and along with the Government of India and of course the World Intellectual Property Organization, it is my proud privilege to thank all the participants in this session. I would like to thank the World Intellectual Property Organization for having considered Hyderabad as an appropriate location for this world-wide consultative process. This was initiated about a couple of months ago when a WIPO mission visited Hyderabad to explore the developments in Hyderabad, to look at IT companies here and to explore the possibilities of using the services of some of our IT companies for major IT initiatives being undertaken by WIPO. In particular, I would like to thank Mr. Richard Wilder, Lucinda Jones and Dr. Ousmane Kane who have also flown in for this event. I would like also to extend my thanks to Mr. Satyanarayana for having agreed to be the chief guest and to inaugurate this process. He has been a very inspiring figure for all of us who are involved in the process of use of IT in the government sector. It is indeed a matter of honour for us to have him amidst us and we were also delighted at the announcement yesterday of a special award by the government of AP recognizing his services to the field of IT. I thank him once again.
Satyam Computers has been one of our most rapidly growing companies, apart from that they have been an active participant in a lot of endeavors initiated by the Government of AP. Satyam Computers is setting up a school in the triple IT, have also set up very excellent facilities in and around the city. I am extremely thankful to Mr. Srini Raju for the support extended by Satyam Computers for this function, as well as his personal participation here. Mr. Subhash Chandra has flown in from Delhi representing the Government of India, Department of Industrial Development in the Ministry of Industry. He had accompanied the WIPO delegation about two months ago to Hyderabad and at that time when we mentioned that Hyderabad could be an appropriate location for this event he was extremely supportive of that and the Government of India finally decided to position this event in Hyderabad. I am very thankful to him and to the Government of India for their support and encouragement. I am also extremely thankful to the Software Technology Park and especially Mr. J.H. Chowdary, the Director of the Software Technology Park. Mr. J.H. Chowdary has been in the forefront of the entire IT movement in this State. At any point of time I believe he has a long hit list and he takes delight in ticking off what he has already achieved. And on his hit list and with a tick mark against that are names like Microsoft, Oracle, IBM, Motorola, Bulb and I hope his hit list is fairly long and I wish him great success in his endeavor. I would also like to thank NAC, APTS, CMC Intel Group, especially Professor Saikumar from IPE who has helped me to organize this event. Justice Rangarajan, who has kindly consented to be here on this occasion, along with a number of bright young members of the legal community including Mr. Pavan Duggal, who has flown in from Delhi and is the founder of the Cyberlaw Association. Mr. Srinivaga Rao and Mr. I.V.S. Rao who are in the legal community here in Hyderabad. I am extremely thankful to all of you who have been able to come here and participate in this function and I hope you will be able to contribute actively to the discussions, and that our discussions may make an impact on the final recommendations which WIPO will arrive at. Thanks to all of you. Thank you.
(Mr. A.J. Sawhney): We are keeping the tea and coffee break up to the first session. Now, we will move into the business session and Mr. Richard Wilder would make a presentation on the main issues which we will be deliberating upon.
(Mr. Richard Wilder, Chairperson, Office of Legal and Organization Affairs, WIPO, Geneva): We are now going to begin the formal part of the consultation, actually that part of the consultation where we have an opportunity to listen to you and to find out what your views are on the topics we are discussing today which broadly are dealing with the relationship between the Internet and domain names. This is an overview of the presentation. Today, I am going to be talking a little bit about the Internet, which is not my area of technical expertise and there are other people here in the room that are far more knowledgeable than I. And hopefully during the course of the conversation their views will come out as well on the technical aspects of the problem we are looking at today. We are going to be looking also at the Intellectual Property issues in relation to the Internet, at the Domain Name System itself, the WIPO Domain Name Process which I will go over briefly. And then in my presentation I will have a conclusion.
The Internet is a network of networks that allows a large number of users throughout the world to communicate quite easily with one another. To exchange information and even to conduct commercial transactions. The origins, as many of you know, were in the United States, in work that was done by the Defense Department and the National Science Foundation over a period of a number of years. It was developed originally for military purposes and also to exchange information in an academic setting. It is an open and distributed network that allows people, no matter where they are located, to freely exchange information, e-mails and also to as is increasingly the case, engage in business transactions.
This slide has a short break down of the different types of interactions that can occur through the Internet. There are passive web sites that allow people simply to post information so others can have access. The first generation of interactive web sites allowed for the taking of on line orders. For example, if you had merchandised a book or a music CD that you wanted to sell, there is a mechanism, which is very prevalent today, that allows the seller or the vendor to take orders and then to fulfill those orders by sending the product through the mail. So called for the physical delivery of goods and services. What is happening more and more is that there is actual delivery of the product through the Internet itself. For example, many of you I am sure are familiar with downloading computer software through the Internet. There are a number of vendors such as Real Audio, for example, that provide software that allow you to listen to audio performances and often that software is provided for free. They are obviously charged for the software that is necessary to create the facility for the delivery of music on-line. But nonetheless, it is possible in a limited extent to download computer software. It is becoming more and more prevalent to allow people to download actual music. And in the future, once the bandwidth increases sufficiently, people would be able to download video presentations such as films.
This slides presents a number of issues for us in the intellectual property profession. I know that there are a number of intellectual property professionals here today and so they are quite familiar with these types of issues. In copyright, for example, those that are in the music business and the film business are very concerned that you would have vendors that would be able to sell music, sell videos, deliver them on-line, which creates problems for the copyright holders because it is difficult for them to control that infringing activity. On the other hand, it presents significant benefits, or possible benefits to people in industry. Such as the music business which because of the technology that is available today can sell individual songs, can package or license the sale in such a way that they can sell the right to listen to a song once. They can sell a right to not only listen to the song but download it and listen to it over and over again or they can sell the right to listen, download and possibly share that song with other people, which allows you then to really finally divide up the rights that you have in works and take very, very small amounts of money in exchange for those rights.
There are a number of patents that exist now in the world in respect of all aspects of Internet technology including communication protocols and techniques and the like. One of the more interesting areas in terms of patent protection is on-line applications, we have an example here of portfolio or investment management services. This would be an example of someone having patent rights in respect of a service that is performed entirely on-line, that is, there is no connection between the service that is performed and the physical world, and this is an increasing application in respect of the use of the Internet.
Trademark protection is something we are going to be talking about today and specifically the relationship between domain names and trademarks. There are also other issues that come up in respect of the different types of marks that are possible. Such as sound marks that can be used on the Internet. There are other rights with respect to intellectual property that I am not going to go over here today, the rights of publicity and also the emerging development internationally of mechanisms for the protection of databases.
Well, you can see that the management of intellectual property rights in the Internet is a very challenging process. Its a global medium, as I indicated, and has global reach both for the sellers and for customers. There is also a fair amount of anonymity. It is difficult often to tell who is the actual owner of a site through which services or products are being provided. Therefore, it is difficult to engage in enforcement activities. There is a need, I think, for further clarity in the legal framework and that is certainly the centre point of what we are talking about here today. We are trying to come to a better understanding of the technical and legal issues associated with trademark protection on the Internet and trying to figure out a way in which we can provide additional security and additional clarity in that area.
The Domain Name Process, actually the technical aspects of the IP and domain names, has rather a long history. It starts with every Internet computer having a unique IP number, which is a set of four numbers from 0 to 255 separated by a period. For example, 184.108.40.206. The Internet Assigned Numbers Authority, which was headed by the late Dr. Jon Postel, who died unfortunately at an early age this past week, coordinates this system by allocating blocks of these numerical addresses to regional IP registries such as ARIN in North America, RIPE in Europe and APNIC in the Asia Pacific region. And this is done under contract with the U.S. Defense Department's Advanced Research Projects Agency. In turn, larger Internet Service Providers apply to the regional IP registries for blocks of addresses. The Network, however, must use numerical addresses, so there is an intermediary system which is the focus of our discussion today, called the Domain Name System, that translates the web addresses used by people that are easily understood and easily remembered into the numbers that are used by the Network. This is when a user types in for example, wipo.int, the Domain Name System translates that name into the corresponding numbers and connects the user with the desired computer. In that case it would be with our server which is located in Geneva, Switzerland.
You can see that the Domain Name System is structured as a hierarchy. You have the top-level domains for example is .int. So, you have wipo.int, and the second or the sub-level domain wipo. And then you can have third levels and so on of domain names. There are broadly two categories of top-level domains. The .int which is for international organizations, which I gave as the example wipo.int. There is also .com which was discussed here today which is used for commercial applications, .org for organizations, .net for network applications. There is also the country code top-level domains, such as .in for India, which I understand is administered by the Department of Electronics here, if I am not mistaken, .uk, .us and so on for all of the country codes in top-level domains.
The need for reform in the system is driven by a number of factors. One is simply the phenomenal growth that has occurred over the last few years in terms of the Internet, so the significantly greater size than what was first developed is one thing driving the Process. And also there is felt a need for increased competition in the administration, especially in the allocation of domain names. Let me go over some of the important stages in the development of this reform process. But before I do that I want to make it clear, and actually one of the speakers earlier today talked about this, that WIPO's mandate in this respect is fairly narrow. We are looking at the intellectual property aspects of the Internet. Questions of governance, that is who and how domain names are going to be allocated will be managed by another organization. There was a couple of years ago an international Ad Hoc Committee and that was convened to look at these issues. They drafted a report and came up with several documents that formed a very important basis for the discussions that are going on today. This was followed by Request for Comments, the so called Green Paper and then later a White Paper by the U.S. Government. And the U.S. Government has been involved in this process for I think reasons that are evident from what I have talked about already, that is that large segments of the Internet governance are in the hands of the U.S. Government or are being managed under contract from the U.S. Government. And what the Green Paper and the White Paper have indicated is that what the U.S. Government wants to do is shift that governance from out of their control and into the control of a new international entity, a new IANA if you will that is in the process of being set up.
So, the reform again is the reorganization of IANA to develop a new entity, a new corporation that will manage the allocation of the Internet numbers, we are also looking at the role and organization of registries. Now, for example .com is administered by a private sector company in the United States called NSI. One possible reform result would be that NSI would share that registry with other entities located throughout the world. So that would be just not NSI, but other companies that could register domain names in the .com space. There has also been the suggestion of adding new global top-level domains. So, taking the .org, .net, .int and adding additional global top-level domains such as .nom for individual names, .firm for law firms for example and so on. I understand that it is technically possible to expand that almost without limit. The question is under whose auspices that expansion would take place and what would be the considerations that will go into making that decision. And lastly, the reform issue that we are looking at today is the interface between domain names and intellectual property, which is the process that we are going to be discussing here today.
In the White Paper that was published by the U.S. Government it was suggested that if the Member States agreed, WIPO could undertake a process to look at these issues. And indeed at the last session of the Assemblies of our Member States, they agreed that it should be a process undertaken by WIPO. We are going to be looking at several issues including domain name dispute resolution procedures, the protection of famous or well-known marks and the effects on trademark owners of adding new global top-level domain names. We have some fundamental aspects of the Process that we keep in mind when doing these consultations and when drafting our final recommendations. We want the broadest possible representation, both geographical and sectoral. "Sectoral" refers to, for example, wanting to have technical people involved, the legal people, trademark owners, so the widest possible range of interest groups that are involved with the Internet. It is based on the Request for Comments and I will be going over the time schedule for that in just a moment. Basically Requests for Comments are documents that we publish through our web site, that ask you to submit comments to us as to how you think these issues should be resolved. We are having regional hearings, eleven in total including the one here today in Hyderabad. We have the assistance of a panel of experts which includes Dr. Kane, who is participating here in this session today. We are looking at basically approaching this issue with a blank slate and we have not come to any foregone conclusions or preconceptions about how disputes should be resolved and under whose auspices. The last slide I think is very important, that is we have an expedited time-table, because the process for developing the new corporation, or the new IANA, is moving very quickly and if we are going to be providing recommendations to that new organization that will be both useful and timely to it, this process has to move along very quickly.
Our focus is on the intellectual property issues associated with domain names. As I indicated, there are many other intellectual property issues at play here in the development of the Internet, but the one we are focusing on today is just domain names. We are trying to provide and are providing an international forum in which all interested parties can participate. Our goal is to achieve consensus and to produce the recommendations that will go to the new organization or to the new IANA.
Here is the time-table. We published our first RFC-1 in July of this year. That was the document that gave the draft questions if you will, the draft issues to be looked at in terms of the relationship between domain names and intellectual property. We received a number of comments on that RFC-1 and so we felt very confident that we had the questions and the issues right with the publication of RFC-2 which you all should have on your tables here today. This lays out the background of the Domain Names Process and a very detailed list of the issues that we are looking at, the issues and the questions for which we want answers from you. We are conducting these regional consultations which will actually will be finished the first week in November and we want at about that time, preferably by the end of this month, to have all of the written comments on RFC-2. And I just want to emphasize that even though we are having this hearing and you have every opportunity to intervene orally and give us your views, if you go back to your companies or to your homes after this and you have additional ideas, I would invite you to submit those to us in writing, which can be done either through mail or through our web site.
We thereafter, are going to be publishing our draft report in December. We will have additional regional hearings after that to examine the draft report and take criticisms and comments on it and then by March of next year will have completed the final report which will then be passing on to the new organization or to the new IANA.
This slide indicates the web site that I have been referring to. Actually it is important I think for two reasons. One, if you have additional comments that you want to submit, they can be done electronically through this web site. In addition, all of the proceeds, all of the regional hearings are being put up on our web site and so you can follow all of the eleven regional hearings that we have had, including this one, and see what kinds of comments and suggestions that were made from other regions, perhaps other perspectives.
Again, just briefly to go over the issues that we are going to be looking at today and this is just in very broad outline form, although we will be going into it in much more detail throughout the course of the day. We are looking at dispute prevention. You know certainly one way to reduce the cost, to reduce the burden on trademark owners, to reduce the burden on domain name registrants would be to prevent disputes from ever arising. So dispute prevention is a very important component. If disputes arise, however, one needs to have some kind of a procedure or process through which those disputes can be resolved. There is also the question of whether a process is needed for the protection of famous and well-known marks. Earlier today the example was given of IBM, a well known mark, and we may need procedures in place in order to protect the well known marks. Lastly, if indeed a decision is taken by the new IANA to add additional global top-level domains, then there would be a need to anticipate what the effects of that might be so that any problems that might arise by adding those new global top-level domains can be ameliorated or perhaps even solved before they arise.
So, to conclude then in this part of the general discussion, the Process here today is consultations on RFC-2 which you have on your table. We are going to complete this process of consultations by November of 1998 and then by December we will complete a draft report which will take on board all of the comments that we have received in the regional consultations as well as all of the comments we would have received in writing, in order to come up with recommendations as to how we can handle disputes between domain names and trademarks. How we can handle the process for the protection of well-known marks and how we can handle perhaps and anticipate some of the problems associated with adding new global top-level domains. That final report then after more consultations and more comments will be issued by March of next year. We invite and welcome your comments and I would say that your comments are extremely helpful to us (end of tape). So, we have here in this room today I think a very diverse and representative group of the stakeholders that will be able to help us in this Process. So, the schedule is that we have a tea/coffee break at 11.30. What we could do at this point is open up the floor to anyone who has general comments. If you have read through the RFC-2 and have some general comments to make or if you just have a point of view that you would like to express, and we could take that at this time. And thereafter, we will be going through almost line by line the RFC-2 to discuss the very detailed points that are contained therein. But, at this point what I would like to do is I will go back up to the podium and sit down and let you provide any general comments that you might have. And I know that there are portable microphones that are available and so if you can simply raise your hand if you have a general comment to make the mike could be brought to you and you may intervene. Also, I would like to say that it would be helpful to us if during the course of the day you could always be sure to indicate your name and the company or the organization that you are affiliated with so that we can have a better understanding of what your perspective might be. So, with that I will go back up here and throw it open to the floor.
(Mr. Chowdary): I suggest that the agency who is administering the DNS server give the domain names that while giving the new domain name they can check up with the local database of that country whether there is any trademark in this name, and if there is any trademark, probably they can check up with that company. We could have specified time and within that time they can come back whether they have any objection for that company to have that domain name. Probably, with that we can resolve some of these issues at the time of issuing the new domain names to the companies.
(Mr Richard Wilder): I appreciate your comment and we will get to those points in a bit more detail later on. I would certainly encourage anyone to intervene generally at this point. I think what we will do is just go around the room then and take general interventions and then maybe before the coffee break we can have a more specific response.
(Mr..................): Continuing with what has been already told that perhaps when going for registration one can apply for whether he wants for international registration or within the country itself. Because some of the people may think that they may not need it for the international level. In case it is for international of course, some system has to adopt. But if it is for a particular country, perhaps with this trademark we can put that country's name as well as the headquarter. Suppose you want to put in India, you put something like ind something like that, which means it is only applicable in India. And, if you want it for an international level that can be of course checked up in the data base whether it is already available or not available within the country or outside. So, two types of systems one is for registration throughout the world or within certain countries. When it is in certain countries that name should have some difference maybe with the name of that trademark plus its headquarters country's name something like that.
(Mr. ..................): In India, when the Election Commission was dealing with the bounds of frivolous campaigns, they had required a very steep deposit fee. Like, if we have a person or a company that is registering for an international domain or for a local domain, there could be a large fee difference. So that if you are asking for an international domain you could be asked to put a substantial amount of money and if its only for a local area you can be asked to deposit a small amount of money. So, this itself would act as a deterrent for people just blocking the names.
(Mr. Pavan Duggal, Cyberlaw Consultant): Good morning. Let me introduce myself. I am Pavan Duggal and I am specializing in cyber laws. Two things that come to ones mind. One, on a general level and the other one on a more specific level. As far as the general level is concerned, we are looking at an international legal framework. The question that would arise given the extremely volatile nature of Internet is, assuming that set of legal mechanisms do take place, where would the enforceability come from? Where the international law has shown us that despite having United Nations, despite having anything, if somebody is hell bent upon not obeying the law they can get away with it. Unless the matter really gets up to a particular level. But the question that arises is, what happens if countries or governments or organizations or specific areas refuse to abide by that international legal framework? We are ultimately looking at the defects of international law. So, that would automatically apply to the international legal hierarchical mechanisms that we are wanting to apply here. On a more particular level, as far as the suggestions made by Mr. Chowdary, it is wonderful. The only problem that I envisage is that McDonalds or say for example x, we have a concept of the same trademark being registered for different classes in the same country. So, long as there is no confusion in the peoples minds, for example you can have McDonald's pizzas and also you can have McDonald's shoes, or there could be something like Pepsi cola and there could also be Pepsi shoes or something like that. So, long as there is no confusion. But the factor does exist of the same trademark being given in individual countries to different categories or classes of goods within the same country. It is also possible and it is perceivable that the same trademarks in the same classes would be allotted to different persons on different countries on the international network. So, when we are looking at a two-level process of an international classification as suggested by my friend here as also countrywise, we would still end up with a lot of confusion and chaos unless something has to be begun right away, and something is begun by the reorganization beginning from today, assuming and letting go by what trademarks have been registered elsewhere, fair enough. But you have to make a new start, because the medium is new, the opportunities are new and the old traditional trademark law is not yet well equipped to really keep in pace with the emerging technology. Thank you.
(Mr...................): I think I tend to agree with the legal issues Mr. Pavan has raised. It is a legal issue. First, before we get into the legal issue, the issue of Internet domain names, the problems that are associated with what is happening are also varying from country to country. It could be pronounced in the United States. It may not exist in some countries. So, we cannot take a particular country's problem and universally spread it across the entire world and suggest a solution for the entire world as if that is going to be the solution. The problems could be different. Secondly, I also tend to agree with him that the laws of different countries have to be respected. At what level are we going to control this problem? Whether we are going to internationalize a certain localized problem into a wider one. And how are we going to enforce it? And fundamentally we said Internet is an open one, it is an uncontrolled one. So, we are getting into a regulatory system, and once you get into a regulatory system how is it going to be enforced at an international level? So, it has got to be decentralized. The minute you decentralize it you have to respect the laws of the land. And it is going to be a different proposition. The reallocation of the names is the easiest one, but enforcing it legally is another problem, it could be very difficult across the world in all the countries.
(Mr. Richard Wilder): Let me just intervene briefly on one point, it is that the Domain Name System is already an international problem in respect of the global top-level domains, the .com, the .net, because those are domain names that don't require a country code. Top-level domains are part of it and so they are domains that are accessible throughout the world and its a domain that gives the user of it a global reach. That is one of the principle problems here, in that we have a medium that provides a global reach for the domain name and yet trademark registrations are national in scope. You have to apply for and obtain trademark protection in every country or every region in which you want to protect it, and yet the global top-level domains the .coms have a global reach. And so there is that inherent conflict between the territorial nature of intellectual property rights and the global reach of domain names. The other thing that I would just recall is that in respect of domain names in terms of enforcement of whatever dispute resolution mechanism is arrived at, its both more difficult and its also easier. Its more difficult again because of the global reach in this inherent disconnect between the territorial nature of intellectual property rights and the global reach of the Internet. Its easier though in the sense that the registrars that register domain names have physically the ability to simply turn off a domain if its found that there is a conflict. And if the dispute resolution procedure that's applied comes to the conclusion that that domain name should not properly have been registered or should be transferred to someone else, then the registrar can effect that change essentially with the flick of a switch. So, that aspect of the enforcement of decisions by the process are easier than say a judicial process. So, we have those differences to be borne in mind as we go through our discussions.
(Mr..................): I believe that we have not addressed one particular problem. That is, there are many companies where the trademarks may be different, and though they want a trademark to be known internationally, the company's name as such may not be known. And once they register the trademark as the domain name then the problem comes because the same trademark may be there in other countries. That is how the conflicts arise. After all, .com is universal, so if you can restrict the .com to a country by adding .com.india then the trademark which is registered as a domain name will be confined to that country, and that conflict can be prevented.
(Mr.Srivatsa Krishna, Executive Director of the Andhra Pradesh Technology Services Ltd. in the Government of AP): I have a few preliminary observations, some of which pertain to the legal aspects brought up by Mr. Pavan Duggal. First and foremost this is a real issue, one surfs the Web and finds comments which range from saying that this is not an issue at all and it is a question of individual freedom and there should not be an international policeman. I have with me an advertisement from the Times of India dated May 7, 1997, and this will give you proof enough as to how even in a country like India, which has just begun its journey on the information super highway, we have already begun to encounter things like this. It says "Internet property auction" and the names of the sites which have already been picked up and resold back to the original owners include BJP, which is the ruling party in India today; Rajiasay Srivansan (?), Times of India, VHP, ABCL, Tata, ONGC and among the other sites which have been picked up and yet available for sale include this very hotel in which this conference is being held, ITC Hotels Limited, Welcome Net Limited, Sachin Tendulkar, Amitar Bachan, Shipsena (?), The Wills Cup, Barathiri Electricals, State Bank of India and a host of other corporates. which reads like a whose who. The minimum auction bid here is stated as US1500 as a minimum auction bid and the time of closing of the bid is five days thereafter, it is May 12th, 12.00 hrs GMT. And it is a regular web site with telephone numbers given. So, all those who claim that it is not such a big issue which should invite such attention, I would like to say that it is completely untrue.
The related issue is the entire process of domain name registration in India that exists today. As on yesterday 8 p.m., India only has 483 domain names and we have over 100,000 users. Why is this? The procedure followed for domain name registration in India has been evolved by the Department of Electronics and for good reason I believe a substantial number of checks have been placed therein. Some could well argue that the checks have taken into the other extreme whereby youre discouraging domain name registration. But, I don't think that, that is entirely correct. Because one reason for the fewer domain names being registered is the fact the law is so stringent in India, and the conditions required for domain name registration in India also include the organization asking for the domain must have its office in India, must have an administrative contact within India and must provide an IP address which is physically located in India. If I can't do that I will have to go across to the United States of America to register my company. If you look at it from one point of view, yes it is a restriction on an individual's freedom, but it has also helped India in keeping disputes in this field to a bare minimum to date.
The next point I would like to make is to draw your attention to the Trade in Merchandise Marks Act of 1958, which is the prevailing law in India governing trademarks. The law in India has mostly evolved through judgements given by the various high courts and the Supreme Court of India in this area. And there are three general principles which I would like to place before you. And as I read it, the definition of a trademark given in this Act applies to a domain name as well. In other words a domain name is a trademark, because the Section 21J of this Act says a trademark is a device, a brand, a heading, a label, a ticket, a name, a signature, a word, a letter or numerals or any combinations thereof and includes now a proposed amendment which is now coming up before Parliament, to include shapes and packages of goods. So, as I read it, I might be wrong, there are legal experts sitting in this room, but as I read it a domain name as it exists today comes very well within the definition of trademarks in India, number one. And, if this is accepted, there are three broad principles on which judgements are being delivered by various courts and these three principles could well be placed before the World Intellectual Property Organization for consideration to be included as part of the document which finally flows out of this consultation. The first principle is, bona fide intention of use. Bona fide intention of use is something which is supported by Section 18 of this Act. I might be a user, I might just register microsoft.com and want to run a shoe company but it is not allowed. Unless, I am able to prove, and prove demonstrably in a court of law that I have a bona fide intention of use. Over the various judgements, over various years high courts have evolved mechanisms to suggest what is bona fide intention of use. These include, applications before government departments, setting up offices in India, advertising and the like. And even suing infringers of that particular name. You might be an infringer yourself, but have you tried to sue any other infringer? That is principle number one.
Principle number two is regulation without use. Now, I could again use the Microsoft name and I could claim I never knew Microsoft runs a computer company. I had no clue. But that does not hold here at all. The law in India and settled law as for various judgements says, that there are ways and means of finding out whether the defendant in that case was aware of the reputation of the company, irrespective whether he is using that name or not. I need not be using that name, but if I am aware of the reputation of the company whose name I am using I am automatically debarred. And there is a settled law in this and there are several cases which prove this. Very famous, the Gillette versus the Kamal Trading Company case in 1979 which was settled by the Delhi High Court, which sort of began laying the law down in this direction.
The third principle, which I think Mr. Pavan Duggal raised, was that it need not be in a common field of activity at all. The case was Banga Watch and Trading Company versus M.B. Phillips. Now, Phillips is a multinational giant and Phillips is known worldwide. Banga Company was also using the Phillips name for making wrist watches, but it was struck down in a court of law and the plea taken by the defendant in that case was that we are not in the same common field of activity. The courts struck down and this principle is being repeated in several judgements thereafter, that it need not be in a common field of activity. He can be in any other field of activity but he is debarred for using such names. This is the third principle.
A couple of other related points. Number one. As it exists today, when one applies for a domain name internationally, first and foremost the user does not have to pay up-front, which is quite puzzling. If I want to take a domain name, if I want to register Andhra Pradesh.com or if I want to register any other name for that matter, I should pay up up-front. That should be some kind of a deterrent. Even if it is a hundred dollars, because there is evidence, there is repeated evidence coming in that the majority of the infringers are those who have not even bothered to pay the registration fee upon subsequent reminders from Interneck. That is issue number one.
Issue number two, is the entire concept of a waiting period. Why should not an organization like say WIPO or whichever is the new IANA, put up proposed domain names on a bulletin board and invite objections. Why should it be automatically taken as registered as soon as the name comes in? It could be well put up on a bulletin board internationally and asked for objections. Once this is done, this is I believe an additional deterrent which could well, apart from stopping frivolous infringement, also create greater business confidence. Because after all, I am speaking as an economist here. What is involved here is the stake of several companies and several million rupees worth of investment. So, this is a step which I believe would create substantial business confidence. A related point is, there could well be a clause in the proposed legislation that furnishing false information in an application means automatic cancellation. Today under the process the way it exists there is no automatic cancellation. It should lead to automatic cancellation. And lastly, which I think someone enunciated, is the entire concept of the loser-pays principle. In this, there must be a compulsory element that the loser having to pay. If it goes up to a stage of a dispute arbitration panel, there must be a clause which says the loser bears all guaranties, which should also be an additional deterrent. As Mr. Chowdary put it very well, we have to balance the freedom of the Internet with regulation. The word here is regulation, not control. How we evolve, what kind of institutional mechanisms comes in is a matter of debate which I hope we can all contribute to. But I believe these are issues which are worth considering, especially because a very vigilant judiciary in India has still to date managed to successfully ward off attempts at infringement of trademarks. And this is something which is a lesson which could be learnt from the judicial history of India and there are pointers which could well be picked up for a wider usage on an international basis. Thank you very much.
(Mr. Rao): In India, there is no legal framework for the protection and enforcement of intellectual property rights. Much less a legal framework for the process of registering bona fide intellectual property rights. Now, the Trademarks Act of 1958 is the one in this domain. In the absence of a proper and effective law and in the absence of an efficacious and efficient legal administrative machinery, for the enforcement of such law, what we need at this hour, in this new situation due to the explosion of IT in India and Andhra Pradesh and what is generally known as the major role players in the IT industry is the proper law to be enacted by Parliament and or by the State legislatures. Because Andhra Pradesh is in the unique position of concentration on the IT, I would suggest that Andhra Pradesh should take the lead in enacting this law, these cyber laws. In these cyber laws should be drafted and enacted the creation of a statutory authority for registering and protecting intellectual property rights. Within that framework this statutory authority's hierarchy would also be incorporated. With process of registration of intellectual property,the criteria prerequisite for such an intellectual property and its registration is to be incorporated and intellectual property per se is to be defined. I believe, with my little exposure and experience, that intellectual property is something different from a trademark. Let us say the Trademark Act is branding equipment for livestock, that branding equipment cannot be utilized, cannot be used for numbering automobiles or aircraft. That is the difference between the trademark law and a cyber law. The property so protected under this Act through registration must be enforced by proper administrative machinery. What is most important in this is the prevention of breach of intellectual property rights which are registered. Before registration, the process of evaluation of this intellectual property and its bona fide nature is to be established.
(Mr. Richard Wilder): I just have one point to make, that the Process here we do need to have obviously insights and views on the national legal situation, but the focus is on the international process regarding domain name protection. So, I don't quite understand the point as to how the local protection of the intellectual property rights has an effect on the Domain Name System and the process for the protection of intellectual property rights in respect of domain names.
(Mr. Rao): Mr. Wilder, I think unless there is a proper machinery and a proper legislation for the creation of these rights by registration, the right is not created until it is recognized. Recognition comes through registration and for registration we require regulatory machinery. Then, that link in the chain is strengthened. I think the rest of the links which follow would also be equally strengthened. And it can be attuned and attenuated to the global requirements, whether it is in the area of dispute resolution or dispute prevention in conformity with the existing international law. We have a new situation here, a gray situation where there is virtually no law, no regulatory mechanism. That has to be created now, and that has to be brought in conformity with the international situation. Only then we can call ourselves global and international. There should not be any conflict between the international concept and the national concept. And in the mechanism for registration is the protection of the registered rights. So, in order to obviate these conflicts, if this State takes up the lead in making a cyber law, enacting a cyber law, then that can be followed by other states in this country. We follow a federal system here in India, as you do in the U.S., and such federal law would override any conflicts. Constituent state laws should be and would be in conformity with the global law, international law. That will go a long way in the prevention of disputes and when a property right has been established to have been breached the penalty therefore must be made enforceable through an efficacious machinery for the recovery of damages which are prevalent in this country. These are basically laws which have been brought in from England, laws which have been copied from England and the U.S. The laws are more or less identical, there is not much of a difference. That is the reason why we have the new Arbitration Conciliation Act of 1996, which is in conformity with international law so far as arbitration of disputes is concerned. So, I suggest that in so far as dispute prevention, these arbitration and alternate dispute resolution fora are concerned, we have to amend the law first, and I think this conference, this seminar should identify the drafting or contribute to the drafting of cyber laws in India as a whole. The position today is that without any legal authority to regulate them solely by reason of custom and tradition, we are following the IT properties. (end of tape).............. And at that point of time, when those laws were enacted, the creation of international property, the explosion of information technology was not even conceived. The new situation requires new law. This new law should encompass all conditions required, all enforcements required and all guidelines required. And in conformity with the global situation, I think in Andhra Pradesh there is a need of the other and I am quite sure Mr. A.J. Sawhney and Mr. Satyanarayana are spearheading from a beuarocratic standpoint this IT development in Andhra Pradesh, and will focus on this issue and enable the seminar to continue towards that end. Thank you.
(Mr. Niranjan Kumar Joysula, Infotech Enterprises Limited, Hyderabad): Well let me introduce myself first, I am Niranjan from Infotech Enterprises Limited in Hyderabad. I strongly concur with some of the views expressed by the distinguished speaker, especially Mr. Sriwatsa Krishna of APTS. Well, let me tell you one thing before I start. In India itself, in the nooks and corners of the country there might be many businesses with the same name which I might know exist in that part of the country or that corner of the country, and might not know that this business with the same name exists in another corner of the country. So, when all these small business people try to get on to the Internet, this problem becomes more severe. It presents an imposing picture when this sort of thing happens and with the development of browser technology where day in and day out these browser people come and announce that they are coming out with intelligent browsers wherein you just type in a name and the location tool bar and they take you to the appropriate web site, it presents a much more serious problem. Because I type in a name and I expect to find a business which I am interested in and it takes me to a totally different business which I am in no way related to, I don't even know what it does actually. So, I would like WIPO to consider these kinds of issues too seriously when they are looking at forming any Requests for Comments or when they are giving any recommendations to the organizations which are being set up in the future. Thanks.
(Mr. Richard Wilder): Lets take one more intervention here. One more general intervention on this side and then what I would like to do before we take the coffee break is to introduce the first detailed topic for discussion and that is dispute prevention. And for those that had wanted to make general interventions, maybe you can weave your points into the detailed discussion that will go throughout the rest of the day. Thank you.
(Mr. K.K. Proshart): Hello! I represent Metamor Global Services. My name is Prashant, my comments towards this fora are as a technical guy, I would like the Internet to be more free, not to have many regulations over it, but I feel the regulations should be specific in allocating the names, with proper database management and to see that the regulative board looks into all the laws pertaining to the trademarks of different countries. I think that should be the focus instead of creating more restrictions on the Internet. Thank you.
(Mr. Richard Wilder): There is one more intervention in the front.
(Mr. Chandhra): I would like to mention a brief point about one very important domain, that is the domain of the Government. With the increase of the concept of electronic governance, this subject becomes all the more relevant now in this discussion. More and more governments are going the way of providing a lot of services to citizens through the use of IT in the broad concept of electronic governance. And this actually needs a lot of consultation at the global level. The good work done, I mean real success stories should be exchanged and there should be a mechanism of easy identification. Because now there is no sort of a standard in the naming conventions for the various governments or various government departments and activities, which I think is one area which should be addressed. It helps in two ways. One is, as an easy exchange of the intellectual property available somewhere with one government which could be used elsewhere. The second and more relevant for today's discussion, the second point is that there will be also a prevention of misuse of these names by the other organizations. Because all told today the way the governments function they really have a certain status and as was said, some people were auctioning the names. So, a time may come when they may auction the names of the governments also, or government departments. So, this is one area which needs some focus. Thank you.
(Mr. Srinivasa Murthy, trademark advocate, Hyderabad): Hello! I am Srinivasa Murthy, I am a trademark practioner in Hyderabad. What I feel is that with trademarks particularly there are certain broad guidelines regarding the adoption of trademarks and the primary requirement of a good trademark is its distinctiveness. The more distinctive the mark, the more protectable. The marks which are not distinctive cannot be protected. So, like this they should create some sort of a broad guidelines with regard to the adoption of domain names, and here I personally feel right at the moment it is not ideal to equate domain names with the trademarks. Because trademarks are fixed to the goods and they have territorial restrictions. For example, if I am marketing a product in India with a particular brand name, when I want to export this to other countries I must ensure there is no similar brand name available in other countries. Then only I can market it. Otherwise my product will clash with the already existing similar something brand name in other countries. Whereas when it comes to domain names through electronic media, here the system operates so fast anybody can have access to any part of the world through Internet. So, in order to avoid the clashes or whatever, some sort of broad guidelines for domain names can be suggested. Like somebody was mentioning here, for example tata.india or something like that, some distinctiveness, so that it can easily identify the originating source, and who are the genuine people. Because trademarks differ from country to country and to bring the trademarks in tune with global merchandise takes little more time. Because all the countries have to change their trademark laws and they have to amend the laws. Whereas this domain names concept is still in the beginning stage, it is now ideal to specify certain clear cut guidelines regarding adoption of domain names. So that, here I strongly believe prevention is always better than cure, rather than allowing people to adopt their own names as domain and then subsequently fighting the cases in court of law and it is a very lengthy process. This is what personally I feel.
(Mr..............): This is more in the lighter vein. We have been talking about avoidance and resolution how to resolve the disputes. Disputes are inevitable, since the days of Adam and Eve disputes have been there both within the countries and externally. All kinds of disputes, even the existing from land disputes, property, money disputes everything is a dispute. In spite of all the laws each government enacts, so whatever is being done, disputes are unavoidable. So, there cannot be a solution in the Internet Domain Name Process or whatever mechanism you have located that you will arrive at a disputeless solution. It is not possible. Now, the issue is, if a dispute arises what are we going to do? Then who is going to resolve the dispute? Is it going to be decentralized to different geographic areas. Disputes arises because one party feels he is affected by a certain event or a certain issue and he is aggrieved and he tries to seek a justice. And he seeks a mechanism by which his rights are protected. An aggrieved party will always go for a dispute. So, I think what is probably required is a sort of broad framework under which different countries respecting their own laws would be able to resolve the issue. Suppose a problem occurs lets say in India over a particular name of the company or a trademark or whatever it is, for a company from Australia, he has to find a solution to this. So, he is in a dispute, he has to fight it either in Australia or in India. If he is affected in India he probably has to come and fight it in India. Then under which laws he is going to get justice? I think this is going to be the issue, rather than trying to avoid a solution that you will arrive at whereby there cannot be disputes. I think we should plan for disputes while trying to decide the process. Thank you.
(Mr. Richard Wilder): If you will bear with me for a moment. I know we are beginning the coffee break now, but let me just take a couple of minutes of your time to focus your attention on the RFC-2, where our first topic is dispute prevention. I recognize that one cannot prevent all disputes, but the person who intervened just before you indicated that prevention is a valuable tool, and trying to prevent disputes is the first topic of discussion. Let me just read the principle and then briefly go over some of the specific elements in this section. This is Section A on dispute prevention. It asks for the following, interested parties, which includes all of you, are invited to propose measures that may aid in preventing Internet domain name disputes involving intellectual property rights.
During the discussions that have taken place over the last two years, a number of such measures have been considered. These discussions have often weighed the rapid pace of Internet activity and the current operational practices of registries and registrars against the need for enhanced vigilance and procedures with respect to intellectual property rights. Now, a number of the elements that are laid out here have already come up in the context of the opening comments that a number of you have made. One element of dispute prevention is to require some detailed information about the registrant in the contract for registration, including e-mail and regular addresses, certification with respect to the domain name and any related intellectual property rights. That is, certifying that if the domain name includes a trademark that they are the legitimate owner of the right to that mark. An agreement to submit a dispute to a specific domain name dispute resolution policy or jurisdiction of particular courts and other relevant information that may come out here today. There is also the suggestion that measures be included to prevent false and misleading information from being included in the domain name contract. And consequences of including such information, for example, if the registrant includes a false address or a false telephone number it may form the basis for the removal of the registration if it is found out to be false. There was also discussion earlier about the desirability of imposing a waiting period, suspension of activating domain names until the payment of a fee has been received. And the desirability of requiring measures to mitigate the warehousing of names. Warehousing, there was an example of it given of a publication in the Times of India of a company that had registered a long list of domain names and then was offering them back to the legitimate owners of the names. That is generally referred to as cybersquatting or warehousing of names.
There was also a suggestion that the desirability of requiring trademark searches to be done before registration. And if such searches are undertaken, in which registries? National registries? Which national registries? And who would bear the costs of those searches. There has also been suggestions of some possible technical measures, such as the use of a directory or listing services, that may mitigate conflicts in instances where one, or two or more legitimate applicants for the same domain name are seeking its registration.
In addition, this is a section where one can also consider the difference between the country code top-level domains, for example .in for India, and the global domains .com. And whether the procedures for preventing disputes should be the same. It is easy to visualise perhaps undertaking to do a search of the national registry if what you are seeking is the registration in .in for a domain name. It is more difficult though to envisage and also to conduct such searches where the domain name is a global one in which there may be trademarks registered in dozens or in more than a hundred different countries.
And then lastly, is a point for the appropriate business of registries marketing their top-level domains, the country code top-level domains as generic identifiers, and using their top-level domain space as generic space. So, broadly those are the issues for discussion. And my suggestion would be that we take a break and come back and go through any additional issues that have arisen in response to these points that were raised and also we can discuss the following topic which is dispute resolution. So, let us take a coffee break for fifteen minutes, so until about ten minutes before twelve. Thank you.
(Mr. Richard Wilder): Welcome back after the coffee break. We are now going to begin the more detailed discussion of RFC-2 and in particular Section A on dispute prevention. But before we do I want to hand the floor over to Dr. Kane who had a few general interventions before we begin. Thank you.
(Dr. Kane): First of all again I would like to thank WIPO for inviting me to join this panel on the important issues of the domain names and also thank the local organizers hosting this meeting in Hyderabad, for the hospitality which has been extended to us since we arrived here. I feel after the clear presentation which has been made by Mr. Wilder, I just would like to add some more general comments. As you know, the world economy is effectively mapped in globalization and legalization, and electronic trade is playing a more important significant role. That means there is a need to find consensus at international level between all the stakeholders and users of the Internet whether to buy or to sell either goods or services and how to protect against disloyal concurrence, cyberpiracy and also to prevent abusive practices which mislead consumers or buyers so that disputes can be prevented or resolved. As indicated in the presentation by Mr. Wilder, the consultations which are being held now by the WIPO through the RFCs aim to find a consensus towards the establishment of the new IANA, Internet Assigned Numbers Authority, and it is for that reason very important to know your point of view, because as he said these are world wide consultations and it is good to know country as important as India what is your point of view and answers on several questions. For example, how this new authority should be created and managed, how the responsibility should be shared. What should be also its legal framework for example with regard to territoriality. That I think is an important question. How also for example to revisit some international agreements like the Uruguay Round for example, to specifically accommodate and address the issue of domain names and also what is the role of international organizations involved in world commerce such as WIPO for example, which relates to intellectual property matters, but also UNCTAD and the World Trade Organization. But specific also to each of them when and how this has to be organized. I think all these are very crucial questions about which we would like to hear from you and to know exactly from your own experience, from your own perspective how this should be tackled to help this process to have this consensus on how to settle an institution which really will play an important role on this issue. These are only some general comments and we will be very happy to hear from you, that is your point of view. Thank you, and I apologize for my English.
(Mr. Wilder): Thank you Dr. Kane. Lets now turn then to the very detailed and very specific elements that are laid out in respect of dispute prevention and what I would like to do is to specifically draw your attention to the enumerated paragraphs in the RFC-2, 14.1 through 14.10. As you know, whether you are applying for global top-level domain or for a country code top-level domain like in the .in space, one has to make an application for registration of the domain name. And 14.1 lays out some elements that are suggested as possibly being required in the domain name registration contract and what I would like to is to open up to the floor after you have had a chance to look at 14.1 and just to request your comments as to the advisability of those elements being included or if indeed you have a comment in respect of 14.6 as to other relevant information or certifications and the need to maintain the information in up-to-date form. So, does anyone have comments on that paragraph 14.1? Paragraph 14.9 draws a link between the global top-level domains and the country code top-level domains and so if you make a comment in respect of 14.1 as applicable to the global top-level domains such as .com or .net then you can also say whether or not that should be applied nationally in the case of say .in or .us or the country code top-level domains. So, just to answer your question it would be in respect of either the global or the country code or both.
(Mr. Pavan Duggal): When we look at 14.1, should we look at 14.1, 1,2,3,4 or should we have a comprehensive guided approach? I personally feel that the existing system is full of loop holes. It is rather a very ad hoc system that has been adopted. More so, out of necessity rather than out of any planned maneuvers. Nobody would have ever visualized a couple of years back that this phenomena would have taken shape as it has taken now or its exponential growth. The present system is not exhaustive, first of all these elements as have been proposed in 14.1 are integral and should be there. However, I have a couple of suggestions vis a vis that which are important to me. First and foremost when I go to Internic and ask for a top-level domain .com, .net, .in, the first and foremost thing is that there is no agreement that is signed between the two contracting parties. It is a unilateral agreement, a photocopy of which is sent to the registrant. It is only an offer, it has to be accepted to make it a contract. There may be implied acceptance but no formal acceptance as per law, nor is a formal contract ever drawn up in the existing scenario. I apply for a domain name, say the Supreme Court of India.com. I get the e-mail saying your registration is accepted and then you receive a hard copy of the bill and you pay. And when you receive a hard copy of the bill you also receive a copy of the agreement which is signed only once by somebody on behalf of the Network Solutions. It is not an agreement that is binding upon me. Well, I agree with you that they have the ultimate power of switching off the domain, but that would not really equate to a force of law. It is basically brute force, if I have to switch off your domain I will. But that is no way of equating it. There is no formal legal agreement and what I propose is that there should be a formal legal agreement between the registrant and the registering authority. None of which really finds a mention here. First and foremost a lot of cases are coming up, especially in India, that I am personally aware of, of people wanting to preserve their privacy. And that is the reason why they are not ready and willing to give their full details. Because if they give full details one of the main apprehensions here is that the income tax authority would be after them. Because a lot of people have not disclosed certain returns to that authority. Similarly, they also may feel and some clients do feel, that giving the right information would basically be tantamount to inviting further problems. Because if you are in some database which is on a sharable basis from government to government, it can create problems for them. How do we ensure that? I also say that there has to be a form, even if it is an e-mail form, and it must be accompanied by an affidavit. Now, when we are looking at procedural law I find some bit of procedural law is important. Right now, e-mails do not have the status of a legal document in our country. That is a big debate throughout the world whether to accept them when the legal implications are the same. But the question is that there is no existing valid legal document which I want to challenge in Indian courts of an existing agreement between me and Network Solutions. What I want in a sense would also possibly be an affidavit, an undertaking by the concerned person who wants to register to the extent that in the case of a dispute I agree to pay such an amount of money as indemnity. I agree with a lot of people here that the Internet is absolute unbridled freedom. But freedom has to be coupled with regulation. Let not freedom be really swindled. In this case I feel domain names are being basically traded. Cybersquatting as somebody mentioned is an important issue. I feel that it is and important issue because cybersquatting is happening more so in this part of the world because it is seen as a way to get quick bucks. I feel hard copies of contracts have to be circulated. The proof of the identity of the registrant has to be an absolute must. Not merely insisting upon contract details with e-mail and regular mail address, as is proposed in 14.1.1. How do I ensure that I Pavan Duggal, is the same Pavan Duggal who is registering with Network Solutions for a particular domain. Somebody else may type my name, somebody else may type my address, my telephone number and register on my behalf and create mischief. Well, those cases are beginning to emerge in India, where professional competitors with an axe to grind are doing these kinds of mischief. Of course, the level is very low, but somewhere down the line the authority concerned has to ask for some of formal proof of identity of the person asking the registration. Otherwise it will be very easy for me to play mischief with any of my opponents. Well, this area has not really been thought over because it was never visualized that this could happen.
Another thing that is we also need to have a proof of whether there has been any previous conviction of the person for any cyber crime. Now, what we are looking at is a much wider perspective. We are only presently looking at crimes in the actual physical world, but more and more cyber crimes are taking place. Cyber piracy, cyber hate, cyber war, I mean you name it and you have it. The question is, is there not time for all of us when we are visualizing this at this stage to really weed out those people who have been either convicted or alleged to have done cyber crimes (end of tape). The word is based on the knowledge of the applicant that when to the best of my knowledge, they may still be beyond my knowledge. So, at least give that person some element or some benefit of doubt. Right now if you look at the agreement that is circulated by Network Solutions, it is nothing but just a repetition of standard clauses which may or may not have any relevance in any particular national, legal scenario. I also feel that there should be a specific stipulation in the bilateral agreement to the effect that I, the person who is registering, do not violate or contravene any persons ideas or intellectual property rights by registering the said domain name with Network Solutions or with the concerned authority. And that should also have a statement to the effect that in case it is found prima faire that I, the applicant, has violated the intellectual property rights of any other person, then I agree that my name shall be put on the black list. There should be some concept of a black list, because now there is no regulation. If I can now afford an affordable price of $70, I can just about go ahead registering as many names. Is it not essential for some kind of responsibility? The contract existing is completely silent of that. I am just throwing these issues open. Further, the agreement or so-called agreement sent by Network Solutions to us on registering a top-level domain name is only on their letter pad, it does not have a formal binding nature of an agreement, because it is not signed by two parties. It is only signed by one party.
Number two. One proposition could be that the agreement needs to be stamped in the particular local stamps of the concerned national area jurisdiction. Otherwise, what agreement, what legal validity would that agreement have in a court of law in the absence of any stamping of that? Further is, that this 14.1 talks of a very important thing. That is, agreement to submit a dispute relating to the status of a domain name to the jurisdiction of a particular court. I think this is opening up a Pandora's box, absolute Pandora's box because the world is a huge court. I am in India, I am in New Delhi, somebody files against me in New York. Do you expect me to go ahead and litigate that case in New York? I would be facing absolute liquidation. We have to be more realistic. I mean, just because the United States has begun the process of the Internet does not mean it has the propriety rights over Internet for a long period of time. And the agreement with Network Solutions presently only states that in case of any dispute relating to domain names you shall be subjecting yourself to that jurisdiction of New Jersey or some particular state of the United States of America. My question is why does this apply to small entities, small commercial firms which do not have the kind of financial resources and cannot afford to go and fight a litigation in America or Australia or anything else? We need to have a country specific court jurisdiction and the best would be alternative forms of resolution which I shall come back after a couple of people have said their comments. Thanks.
(Mr. Richard Wilder): Thank you. You actually raised a number of issues that are important not only for this section but also the other ones to follow. The one think I would like to point out is that one of the proposals would be to expand the number of registrars in respect of .com space for example. So, it would not be exclusively limited to Network Solutions, but there could possibly be more registrars registering domain names in the same registry. That is the registry for the .com space. Theoretically then you could have a registrar that is located here in India, physically located here to receive the applications for registration in that space.
You raised the question of two things, in respect of the contract, one is the legal sufficiency of entering into a contract where you have terms and conditions that are proposed and then accepted by the registrar without a signed physical contract. And of course the law in that respect varies from jurisdiction to jurisdiction. Some jurisdictions do allow for contracts of that nature to be entered into. Some I think you are suggesting perhaps that India might have some difficulties with that. I would expect that the registrars when they set up their system for registration would have as a component of the agreements they entered into a provision for the controlling law. Both the controlling law in respect of the validity of the contract itself and then also the enforcement of the contract, which as you pointed out is in NSI's standard terms and conditions. So, that as an applicant for domain name registration you would have to be both aware and cautious when you are entering into an agreement as to what is the controlling law, because even if you are a national of India, if you enter into a contract that is subject to the law of another state, the validity of that contract and the enforcement is going to be done in accordance with the law provided for in that agreement. I guess what I am saying is that right now, since we have in respect of many of the global top-level domains, one registrar and one registry. That is the situation as it stands at the moment, but in the future it is going to change. So, when we think about these things, whether it is the elements in a contract or the other elements here, you have to imagine that it could very well be that in the not too distant future the now existing situation regarding how one applies for and obtains the registration of the domain name will change significantly if indeed the decision is made to add additional registrars in respect of the same registry.
(Mr. Pavan Duggal): Let me add one more thing. We have a standard universal principle of that there is no estoppel against law. Assuming you put in this particular clause of submitting yourself to the particular jurisdiction to a particular court. That still would not stop you from litigating in your own country and that means that despite having signed this agreement with Network Solutions or whatever, I am still not estopped under law, I am well within my rights to start litigating in India. The only thing is the problems of litigating in India would be far more, though litigation would be less expensive here. Litigation is going to be far more expensive in the United States. So, these are possible areas that we all have to look at together. Thanks.
(Mr. Richard Wilder): Okay, does anyone else have comments then on 14.1?
(Mr ..) I suggest that firstly that if a domain name is not used for a certain period, say for one year or so, if he registers and does not use it at all, then it should be forfeited automatically. Right? And the second point is, that when the registration is done, in the application itself there should be an undertaking to the effect that the registrant will indemnify in respect of any issue that arisees at the time of dispute resolution. That there should be an undertaking to that effect in the registration form itself. Thank you.
(Mr.Sawhney): In case of the law on arbitration and also in case of laws related to patents and other intellectual property, I think one of the things we have seen is that some model laws are first arrived at through a global level institution and then various countries are persuaded to have similar laws. Of course, it is a fairly time consuming procedure. But in this particular case probably formulating model laws and then persuading governments to have similar enactments may be of use and it may not be realistic to expect the new authority which is getting created to do that. It would be probably more appropriate for a body like WIPO or another agency in the UN system to take the lead in this. Is that in the zone of consideration? It is not very clear at least from my reading of this. Thank you.
(Mr. Richard Wilder): Well, thank you. The approach that is being taken in this context is not to contemplate a treaty making process. We do have ongoing within WIPO a number of initiatives to develop international norms by treaty making. For example, the Patent Law Treaty and we have a Standing Committee on Trademarks that is looking at a number issues, as well as a Standing Committee on Copyrights. But for this narrow question of the relationship between domain names and trademark rights, there has not been a decision taken by our Assemblies of Member States to contemplate developing international norms through the treaty making process for a couple of reasons. The principle one being that process for establishing the new organization, or the new IANA, is moving very rapidly and they will require advice on how to consider and resolve these issues within the period of a few months. And typically, the treaty making process takes several years if not a decade in some instances to have a discussion among states as to appropriate norms to establish at the international level and then to implement those norms on a country by country basis at the national level. So, that process would take quite a bit longer. Also, in this case it really isn't necessary to establish international norms because we are not asking for norms that will be binding on states. The only thing that has been requested and the only thing that our Member States have asked us to do is to provide our advice, if you will, to this new organization as to how these matters can be resolved. And so we are not asked to administer a procedure to develop international norms, we are simply being asked as the Secretariat to develop advice on the basis of these broad consultations that will be provided to the new organization. It will then be incumbent upon the new organization to take that advice on board and to act upon it, in itself developing rules pertaining to dispute resolution procedures for adding new top-level domains and procedures for the protection of well-known marks. The nature of this Process is such that it is not a norm making initiative that would require treaty making. Are there other questions or comments in respect of 14.1? And also again if I could remind you, because it would help us, if you could just indicate your name and your affiliation, the organization or the company that you are with.
(Mr. Srinivas, Software Technology Park): I am Srinivas from Software Technology Park. As my friend Mr. Pavan Duggal was saying, somebody can forge my e-mail address and register under my name. So, there can be something like a regional centre or national centre to which we can forward the request and the regional centre then will give its comments or suggestions and then forward it to the national NIC to give the domain name registration based on their suggestions. This can limit to some extent the fraud cases and the regional centre can be given strict guidelines which they can follow in filtering the companies details. Thank you.
(Mr. Rajagopal, Credence Technology): I am Rajagopal from Credence Technology. In my opinion, India is already a signatory of TRIPS and TRIMS package and we have to confine ourselves to the TRIPS and TRIM package. We need not have a separate law pertaining to patents. India trademark law is by virtue of India being a signatory to TRIPS and TRIM, we are governed by TRIPS and TRIM. As far as registrars in India, already NIC is doing a good job. They have posted a good number of government pages, government companies web pages basically. They can be the registrars here in India by virtue of India being a signatory of TRIPS and TRIM of the World Trade Organization. In India itself we can solve disputes between two Indian companies by identifying the company because domains are only based on either the company's name or the products name basically. If that extent of segregation is done I think 14.1 will be addressing the major dispute prevention process. Thank you.
(Mr. Richard Wilder): Lets move on then, we can certainly come back to 14.1 and the elements therein if questions arise in the future, but maybe we can move to the next few suggestions here regarding dispute prevention. One is, and I know there has been some discussion here of registrants for domain name protection including in their application false and misleading information in the contract itself. But the question here is that whether you have suggestions in respect of measures to prevent that from happening and the consequences. I know there was an intervention earlier today regarding 14.3, indicating that it was desirable to impose a waiting period prior to activation of new domain name registration. This would be for example, that you make an application and you have to wait 30 or 60 days before your domain name is activated. Along with that waiting period would likely go a procedure whereby people could be notified that you are seeking registration, so that if they feel there is a conflict between the domain name youre seeking registration for and the trademark, they would have that period of the waiting period to raise those concerns before the domain name is activated. There is also in 14.4 the indication of the desirability of having a fee paid, That is paying the money before you get the activation of your domain name. That was also earlier indicated as being a desirable feature. And also we ask for your advice here in 14.5 of measures for mitigating the warehousing of names, which was also a problem that was raised. So, let me just throw those items then open for discussion and if anyone has any suggestions, any particular measures to prevent false and misleading information and measures to mitigate the warehousing of names, that would be appreciated.
(Mr.......................): About 14.2, possibly the registrar can revoke or suspend the operation once he finds that there is a misleading information if you enable him to do it. Then the ball is in the court of the applicant to prove that his application is genuine.
(Mr. Richard Wilder): That would be, for example, if the applicant included say a false address or other false information.
(Mr.....................): Immediately it can be revoked? The registrar can have the power to revoke the registration. Where 14.5 is concerned I remembered this warehousing of names. We had a similar situation in the motion picture industry in Madras for instance. Those film makers, they register the names in advance, but sometimes they don't make the movie, somebody else wants to make it and he wants to have the same name and the Chamber of Film Commerce, they have an arbitration procedure for deciding who will have that name. Possibly in the U.S. also they must have had similar experiences we can draw on to find out how we can resolve this.
(Mr. Richard Wilder): If I understand your point that is typical in the film industry that they would have.......................(interruptions)
(Mr..................): Yes, a similar situation arises. We can draw on that experience to find out how they are tackling it.
(Mr.Sawhney): This is with reference to 14.3. Instead of imposing a waiting period, deactivation may also be a very good option, because the option of deactivation is available to us and the present response or speed of activation could still be maintained. We could still allow new domain names to become active, have a waiting period which is like a probation period or something like that during which if there are any objections we deactivate, we don't lose much by that and we don't also cramp up the process by introducing delays where there are none at present.
(Mr. Richard Wilder): This would be a provisional registration?
(Mr. Sawhney): Yes. Something like a provisional registration, but the domain name itself could become active almost straightaway as it is becoming now, and then in the meantime we do invite objections and if the objections are sustained we deactivate it. We don't lose much and we don't cramp up the system. We don't start introducing delay elements everywhere along the system.
(Mrs. Kusum Dugga: Headmistress, Delhi Public School): I am an educationist and I have come from Delhi. This is regarding 14.3, the desirability of imposing waiting periods prior to the activation of the new domain name registrations. I would like to suggest in this regard that this waiting period should be a kind of a time period whereby it should be publicly known to people around as to who are the ones who are registering themselves for a particular domain name. Say for instance, in the first fortnight of a month, we have about 500 people asking for a certain domain name and on the 15th of that month it would be published in the leading newspapers of that country that such and such people are coming for these domain names. In that particular case it will enable those people who are the actual owners or the actual people to identify the people who are faulty and it would be known to the people in the country itself that there are certain people who are going to create trouble and these defaulters can be caught and within a stipulated period of time they can be taken to task. Thank you.
(Mr.................): I would like to represent the users of Internet. There are lawyers here, there are educationists, there are commercial departments, industries etc. As a user, if I want to put up a web site and take a registration for a domain, there should be no deterrents. Once the registration process goes to a government department in any country, leave alone in India, in any country, and if you introduce a waiting period and all that, I cannot do business. If Internet is for commerce there should be no delays whatsoever. If I apply for a number today, the IT provides for instant checking. For example, if you want viasamurthi.com, I can straight away find out whether it already exists or not. That checking up can be done immediately as to whether it is or it is not available for me. And if I have a dispute I take it up. The person who registers, registers freely. The one who wants to fight comes about later. Now, the one who comes early in any business takes it up. That should be the spirit of the game and it should not be left to any government department to register. For example, if I want a trademark right now I can say that it takes anywhere between 6 to 10 years. If I want a domain name, if it is going to take so many years, no business would flourish, no business would come up on the Internet. So, my strong point is that there should be absolutely no waiting period, if you apply for it, if they can give it just with the reply e-mail, I would be very happy about it.
(Mr. Nethri, CNCRND): My name is Nethri, I am from CNCRND. My comment is related to dispute prevention. In my opinion, most of the usage of Internet is non-commercial, say 80% or so, like e-mail, information sharing, web publishing and all that. So, these rules and regulations and all these things are coming because of the commercial and financial transactions. So, can we distinguish our views to two parts, one which can apply to the commercial, financial things, then all these rules can apply, and the other for non-commercial information sharing, server and e-mail communication, we can deal with whatever kind of rules are there. That will save a lot of the burden, because the percentage will change, but in the future I also foresee that a lot of information usage of the Internet will be non-commercial. So, because of that commercial use, we should not see everything ruled as commercial. So, that will save a lot of trouble.
(Mr. Richard Wilder): Let me just say one thing on that. I know that there have been some suggestions that some of the global top-level domains should be reserved for non-commercial activities. For example, .nom for names could simply indicate an individual in their personal capacity has their name as a domain name, so, your name .nom. There is still a difficulty in that though, because the registrar in this .nom space does not know, just on the basis of your application, how you are going to use that domain. It may turn out that you are using it just for personal communications, to put up pictures of yourself and talk about yourself and your family and your friends. Then again, you may have the name Tata and you decide you want to have tata.nom and you say well, that is a name that has a great deal of reknown throughout the world and you decide you want to use it then for commercial purposes. So, you still get to this problem of trying to either resolve the potential trademark conflicts at the beginning in respect of all domains or you say you will reserve certain top-level domains for non-commercial activity, but you still have that threshold problem to resolve whether the person who is registering the domain is indeed using it for non-commercial activity or not. But there are still some tests and there are some inquiries that have to be gone into, no matter how you decide the structure of the system.
(Mr..............): With regard to 14.2, measures to prevent false and misleading information. Maybe if the registering authority can ask for more details, like in India when we start a company we go and register ourselves with the Registrar of Companies. If it is software, we have to get permission from the ROC first. We register ourselves as Software Technology Park, in case of an export promotion we get registered with the export promotion courts. In all these documents we identify ourself, either in the Ministry of Industries or Ministry of Commerce ROC, as Software Technology Park. These documents can be insisted upon by the registering authority. So, that level of authentication or that level of documentary proof can be submitted by the company soliciting a domain name.
(Mr...............): Well, in the case of several top-level domain names existing, you said that there is a .com, .nom there is a .co, .in for dual domain names in India. Well, I have a person whose name has the initials J.K.T. and there is a company in India which is known as J.K. Tyres, so both of them might fight for jkt.com and jkt.nom. But, they will be known as J.K.T. So, when you go to any intelligent browser and you say J.K.T. where does it take you to? Well, here is the question of exposure, you know the freedom of exposure, the equality of exposure on the cyberspace. As it is, the basic rationale behind the Internet is its boundryless nature. So, when it is boundryless, why are there are so many top-level domain names? Thank you.
(Mr. Richard Wilder): Thank you. I think that there are different categories of disputes that can arise. And certainly you have one category which you just described where you would have two entities, two companies that have legitimate claim to the same name and there have been cases along those lines. That is different from the other situation we are describing of the warehousing of domain names or cybersquatting, where the person who is registering the long list of domain names of well known companies does not have a pre-existing legitimate right in those names. They are simply getting the domain name registrations because they want to either sell it back to legitimate owner or use it for some other inappropriate purpose. So, when you talk about the dispute resolution schemes here, you have to consider the different categories of disputes that can arise. Do we have more comments on those sections?
(Mr.................): We have a system in India where companies that want to register themselves in as a charter accountant have to give a certificate that the company has an amount of capital outlay that is going to be employed in the industry. Or if it is a search industry, they have to give a different account so that industries which are not really serious, or people who are not serious to start the industry, cant block the particular name just because the name is going to be in much demand. But that still leaves scope for people to secure those names if they go to voluntary organizations. With regard to that, probably an advocate of some standing in a court of law can give a certificate that the particular voluntary organization or non-governmental organizations are serious about it, so that their names can be awarded. So, a legal authority or charter accountant as the case may be should give a certificate or a particular form to the individual to certify that they are really serious with regard to a particular web site. (end of tape)
Mr. Pavan Duggal: Section 14.4 covers 14.3 and both of them have to be read in conjunction with each other. As of now, Network Solutions normally takes three months to send your billing and that alone could be seen as a waiting period before activation of the domain name. That would really filter out unwanted intruders into the Domain Name Process. As far as 14.5 is concerned, it is all the more essential, a lot of jurisdictions agree that e-mails are the accepted legal norm while others don't. But still, one of the ways of mitigating warehousing and cybersquatting would be if the registering authority could insist on a mandatory requirement of hard copies and also to require an affidavit as to what domain names one has already registered, and what all domain names one's family members have registered. So, as to give an idea to the registering authority of the total number of domains that a particular family is holding. It is reasonable to believe that a family would be able use only one or two or three or at the most five domains. But if an individual who is holding up to fifty and a family holds up to five hundred, surely that is a prima facie case of cybersquatting. And professional domain name warehousers who trade in domain names for commercial purposes have to be identified through these very mechanisms and surely some kind of penal action would apply. As you said, switching off the button for the domain name, and in that case black listing. Black listing, I can understand that some of the people would be unnecessarily harassed through this, but I think a larger signal will go across to all people who are indulging in cybersquatting. Well, it is time for us to really be in control and not to take on too much. And as far as having hard copy of proof of your residence, because if you have a hard copy or a photocopy of your passport, your ration card, or something or the other which can lend some credibility, some credence to your identity. That covers 14.5. Thanks.
(Mr. Richard Wilder): We could then move on and open the discussion to another couple of issues, these are related issues that come up in 14.6 and 14.7. Section14.6 talks about the desirability of requiring trademark or similar searches to be performed prior to registration. This would be where someone is seeking registration for a domain name and one then undertakes to do a search of national registries or regional registries to see if that same domain name has been previously registered as a trademark. It then asks how, if it was deemed that, that is a desirable result and I know that earlier on comments that suggested that, that would be desirable, especially in the .in space, how it would be performed and who would perform it and who pays? Which you know are all very important practical questions.
Section 14.7 talks about the development of domain name databases, which could include the global top-level domains as well as country code top-level domains, to be developed to allow the domain name applicants or holders of intellectual property rights or others that are interested to conduct searches. It then goes on to talk about some of the more technical aspects of establishing such a database. So, again if you have any additional suggestions or questions beyond those that you earlier provided regarding the desirability of trademarks searches, clearance searches if you will prior to domain name registration and also the requirements of a domain name database. Those also could be added into the mix. And as I indicated before, certainly if you have points now in respect of the other elements here in dispute prevention you can bring them up. Any comments on those issues, trademark searching?
(Mr. Chowdary): I feel the model agency which is involved in the domain name registration probably they could be involved to provide the search engines to the trademark registration companies. And whatever money the people are paying for the domain name registration, part of it may go to that model agency for providing these searches and for maintaining and providing information to the people who are applying for the domain name registration. That way it would be more coordinated through that agency.
(Ms........................): This is in continuance of point 14.6, the desirability of requiring certain trademark similar searchers to be performed prior to the registration of the domain name. If such measures are deemed desirable, how would they be performed in light of certain domain name registration practices and who is to perform the searches and who should bear the associated costs? As far as this point goes, you see, we can deal with it in two ways. Taking it from the lowest NIRP to the highest, or from the highest NIRP to the lowest. Let me talk of from the lowest NIRP to the highest. Supposing we talk about India and there are people who are wanting domains, obviously we have been talking about and we have come to the consensus that we would have registrars to register and the kind of registrars and the type of domains, I mean the type of areas earmarked for these registrars should also be specific. Since India is a big country, at least we should have major four cosmopolitan cities or major four areas earmarked clearly North, South, East, West. In that case, it would be much more convenient and easier for the registrars to deal with those particular areas as and when the situation arises or concerning the various domains etc, of course in consultation with the head office which could be placed maybe in New Delhi or maybe in Hyderabad of course, Hyderabad being the very important place as far as WIPO is concerned. And then of course, these regulations and the rules followed by these bodies have to be given via the main channel that is U.S., Washington. And of course these can be carried out and conducted. And these rules and regulations made out over there have to be internationally based, but as far as what has to be accepted as far as the country is concerned, the national laws and the laws concerning the country should be respected and adhered to. So, in that case you see that would further mean the decentralization of the whole system as such and it would involve quite a bit of expenditure no doubt. But I think that the people at the helm of affairs of organizing this whole thing should have a lot of finances to undertake these kind of ventures which in the long-term would be very, very helpful as far as removing the faults and finding out the defaulters and of course streamlining the whole system at large. Thank you.
(Mr.................): This is with reference to 14.7. I feel that the registries, the registrars should maintain databases. The local registrars with the authority to register the domain names should maintain databases and all these databases should be linked throughout the world. However, in maintaining the registry of domain names, they should have a linkage with other databases of other registries. And this could be similar to the credit card databases that are being maintained. Now, somebody is a depository of some bank holding a credit card and he applies to some other bank requesting for a new credit card, then that other bank searches the database of all the credit card issuing banks and then it comes to know that he is a defaulter there, and his credit card application is rejected. A similar kind of approach could be taken as regards this 14.7 instant. Thank you.
(Mr.....................): I think reading 14.6 and 14.7 in conjunction with each other we need to slightly broad base the meaning of the word "similar." The 14.6 uses the words "desirability of requiring other certain trademark or similar searches." Now, that has to be elaborated and punctuated upon. I think the word "similar" should mean searches even of those people who have registered for trademarks, whose applications have been filled in but who have not been granted trademarks. Because the normal process of granting a trademark in a third world country like India would take seven to ten years, but law makes it absolutely clear that my protection begins the day I filed my application for trademark. That is also the standing law in other countries. The time of delay in processing your application for trademark would be a particular x amount, it could be a couple of months, it could be a couple years, but the protection of an applicant starts from the day his application goes in. Because otherwise if you are only going to be limiting yourself to trademark searches, the total number of trademarks may be say one hundred, whereas the applications may be six thousand. So, I would see no rationale in excluding these applicants because they have already fulfilled what was required of them by filling in an application. It is not their fault if the trademark registry can't send the trademark registration after a couple of months or years. Therefore, they also need to be put within the ambit of 14.6 and 14.7 searches. Another approach could be that at the time when a domain name is applied for by an applicant to the concerned authority, he should specify whether number one he holds a trademark of that. Number two, whether he has applied for that and number three, the details are the same. So, that at least there can be three distinct categories; A, of people holding trademarks and getting clear protection. B, of people having applied for trademarks and being within that interim period where protection would be applicable to them. C, people who have not applied for trademarks, where no protection is applicable. I think we need to broad base this very word "similar" in 14.6 and 14.7-that would make it far more realistic, otherwise it is no good for people applying for trademarks and yet not getting the benefit of trademark protection under the domain names. That will be closing the eyes to a very predominant feature of law existing as of now. Thanks.
(Mr....................): Now, I have heard general observations in this regard. I just want to draw the background that in this country, people are not even aware of registration of births and deaths. And then, whenever they open a business they need to obtain a hundred licences. Now, the clearance of these domain names and then the registration of trademarks should not become a hundred and one. I mean, already opening an operative business in this country is quite a ticklish thing. It does not make your life easier, in fact it makes it reasonably miserable. So, what we should do is enmesh this process of registration into the general process of licensing. Let us say if I am opening a business, if I go to a particular authority, you put the whole process within that ambit so that the businessman who wants to operate his business should not go to a new window to obtaining these clearances, which could be costly. Is it easy for me to choose and pick? Why should I apply first of all? Why should there be this process of application at all? Why can't it be a natural right? The moment I establish a business, can I have access to a reasonable list of names which I can pick and choose, by adding, modifying, editing and deleting some of the alphabets or numbers or whatever it is. Can we make that process look simpler? Because we know that, I mean entrepreneurs do shy away in this country because of this whole process. And in the process, numerous middlemen are flourishing in this country. Just in the process of obtaining these licenses and permits I think we should not create a system under law, wherein this also becomes a hinderance to do business and for business to grow and flourish. A lot of people do not comply to those norms which are difficult to comply. The number of people who do business and who do not apply for a sales tax number is quite significant. The reason being, they say, that it leads to enormous harassment-it is not that you can pay a certain amount of x and then be done with it. It calls for the maintenance of a huge amount of books and employment accounts and etc., etc. For those very reasons they don't apply for a number at all, they do it the back way. So, can you think of a process where things can be easy, where if I start a business, if I get one permit everything should be encompassed in that. It is only food for thought. Thank you.
(Mr. Richard Wilder): Thank you. Well, I mean that is one of the things we are trying to do here is to come up with the right balance in the system. I don't think here today we are going to resolve the issues that you raised in terms of the one-stop shopping center for business when it comes to getting not only the licenses but also registration of domain names. We are trying to establish the right balance here of speed and accuracy on the side of the registries so that as one applies for a domain name they get it as quickly as possible. Balanced against the need to have certain safeguards in place in order to protect the rights of trademark holders. So, that is really the tension that is built in here and in the discussion we have had so far this morning I think a lot of that tension has come out. People who are from the side of the applicants or who recognize the needs of the registries saying we need this whole process to move along extremely quickly. Those representing the trademark holders saying no we need a waiting period and we need other safeguards to be put in place. So that is the tension that we are trying to resolve in this section on dispute prevention. To put in place a mechanism that moves things along quickly, but while still protecting the rights of trademark owners. We are going to break now for lunch. It is one o'clock and we will have one more intervention before lunch.
(Mr...............): I just want to say regarding 14.6, the question really is the desirability of trademark searches. Is it really required, such a trademark search? The point is, supposing I have a mark and I make an application for the domain name of my particular mark. Suppose I have the name "Atlas." I make an application for putting my name as atlas.com and if I make a search and find out that certain other people are also having the same name Atlas, but they have not made any application, should I be denied the name? What is the need for the search at all? The first come, first served basis really encourages enterprise. If I am enterprising enough to come with my mark first even though there are other genuine companies having the same mark, why should they be considered at all? So, I feel that 14.6 is not required at all.
(Mr.................): I have a suggestion regarding this. There could be a two-step process. We could have a fixed period of a couple of weeks where let there not be any registration and take stock of all the existing ones and let anybody who counter- claims, let them come forward and file it during that period. That means we are giving an opportunity for the concerned individuals and widely publicized all over saying, if you have any particular complaint against any of the names, let the individual aggrieved party come forward and file it. If, there is a conflict it could be looked at it. The second step could be, give another one month period, where you let people file whatever they want. Do not register any domain name. Let the conflict be resolved regarding the new applications. Then you bring all your databases up to date from that point. Then you apply your norms of whatever you want to do it. With this application people have gone into certain domain names trying to change them. It is going to be difficult, but somewhere you have to have a cut-off period from where you start with your slate clean.
(Mr. Richard Wilder): How many people want the last word?
(Mr...................): Again on Section14.6, how about the reverse process? When a company approaches for the registration of a trademark to the ROC, the ROC people should check with the domain registration database, whether already there is any existing domain name for that particular company. Otherwise the same chaotic situation may exist after some time. So, the process has to be both ways, wherever the registrar is giving a new domain name he has to check with the ROC data base, the registry data base. The other road is whenever a new company approaches for registering his trademark he should also check up with the domain database. Both should exist.
(Mr. Richard Wilder): Okay. So let us take a break for lunch. We did not get a chance to have a detailed discussion of 14.8 through 14.10, but after lunch we are going to be moving on to dispute resolution and if you have any questions on those 14.8 through 14.10 we can do that after lunch. But, given the time allowed we really do have to move into the topic of dispute resolution. Many of the issues there are the same as we have already discussed, so I think we should be able to move through with that in fairly short order. Bon appetit!
(Mr. Richard Wilder): And thank you again to Satyam Computers for the wonderful lunch. As I promised, at this session we are going to be moving along to Section B of the RFC-2 dealing with the dispute resolution. This morning we went over most of the issues involved in the prevention of disputes and we took on board some very interesting ideas regarding ways in which that can be done. Now, we are going to move into the round where perhaps dispute prevention methods that are in place haven't worked and we are involved in a dispute. And I think the point was made earlier this morning and one that we would certainly agree with, that it is not possible to set up perfect systems whereby you can prevent disputes from occurring at all. At least in a democratic environment like this one. So, therefore we of necessity have to contemplate disputes arising and come up with mechanisms whereby they can be addressed. Then again I think it is important to bear in mind that we are talking about a system of domain names where we will very likely have the existing global top-level domains, plus some additional ones. So, we will be no doubt adding additional top-level domains. In addition, I think it is also good to bear in mind that in respect of the global top-level domains even though now there is a single registrar for them; in the future it is entirely possible to contemplate that we will have a system where there will be more than one registrar for the same top-level domain. And if that is the case, then you would have different entities perhaps located in different countries that are registering domain names in the same domain space. Then the question arises, and we will get to that here in Section B, as to the need for uniformity, the need for transparency and the need for a system that operates smoothly and fast enough to keep pace with electronic commerce, which moves at the speed of light.
So, lets move then into the dispute resolution section and what I will do is the same as I have done for the earlier section on dispute prevention, I will just read out the opening paragraph which I think sets the tone for the discussion that will follow. Interested parties, including the people here today, are invited to propose dispute resolution procedures that may assist in resolving disputes concerning domain names and intellectual property rights. The discussions on the management of the Domain Name System have addressed the conflicts between domain names and intellectual property rights and have considered whether a certain alternative dispute resolution procedures may facilitate the settlement of this sort of dispute. The global character of the Internet and the consequence that the effects of Internet activity may not be restricted to any particular national jurisdiction, has been recognized as calling for the establishment of dispute resolution policies for domain names that are international and consistent in scope. It then goes on in the numbered paragraphs under Section 16 to lay out a number of issues or points for discussion. One of the principle alternatives that one considers in dispute resolution in respect of Internet domain names, just the same as you do in any dispute that might arise, is whether it should be left to the courts to decide or some alternative dispute resolution mechanism, at least in civil cases. For example, administrative procedures which could be applied by the domain name registrar, mediation and arbitration which mechanisms may be administered by the registrar or by some other organization. Section 16.2 talks about the desirability of ensuring consistency and, as I indicated, in the near future there may be cases where the same domain name space is administered by more than one registrar and one may want to have some consistency in respect of disputes involving the same domain space even though it is different registrars that have registered the domain name. These mechanisms to ensure consistency could include an agreement in the registration application that the domain name registrant agree to submit the domain names to dispute resolution procedures. The registries will abide by the determination and the alternatives would be limited. Lastly, under 16.2 it talks about limiting the remedies to the status of the domain name itself. That is removing it from the registry, but not monetary damages.
Earlier this morning, we talked about different categories of disputes that arise and that is what Section 16.3 talks about. That is, if you have a case of cyberpiracy where someone has deliberately appropriated the name, for example, a well known trademark of another company and registered it for a domain name. That is different from a conflict that arises between bona fide parties, where you have two companies for example, one in India another one in the United Kingdom that have adopted the same name for their business and done so in the ignorance of the other company, they may have a legitimate claim then to the same name in the .com space for example. So, the question here is whether or not we should have different approaches to resolving disputes in the case of cyberpiracy where there is no bona fide registration and cases where there are bona fide disputes between registrants. We also ask for comments on the extent of the registry or registrars involvement in the resolution of domain name disputes. That could go anywhere from one end of the spectrum, where they have no involvement whatsoever but just require the disputants to deal with the matter in court, all the way to active involvement where they are an active participant in assisting in the resolution of the dispute. There is also the question, and this arises certainly in cases where you would have the domain name registrant and the trademark holder resident in different countries, the desirability of making the registrar responsible for accepting service of process. That is, in the case of involving a dispute over a domain name, the domain name registrant would say it would be acceptable for process for civil action to be served on me. It would also be appropriate for that service to be served on the registry or the registrar.
The next one, Section 16.6, asks about the possible involvement of dispute resolution administering authorities. The basis on which and by whom they should be selected and the coordination necessary of any dispute resolution procedures offered or made available to domain name registrants. This would be outside the involvement of the domain name registrar if you would have outside organizations such as those responsible for administering mediation or arbitration mechanisms to have an involvement in the dispute resolution mechanism and if so how that would be done. And also the role that national courts would play in the resolution of disputes.
And Section 16.8 raises the question that early this morning was just touched on I think very lightly and that is what is the law that would apply in the resolution of disputes? For example, if you have a domain name registered in .com space, therefore it is a global top-level domain. It is a domain that people have access to throughout the world, there is no necessary connection with any one particular country. What would be the applicable law to apply to a case if you have a trademark owner in India, for example, that's contesting the registration of the domain name, should it be any one national law that would be applied? What would be the role of the agreement that was entered into when the domain name was registered? And also, whether it would be advisable perhaps to contemplate having special criteria that would be applied in the case of such disputes. For example, would it be appropriate to recommend to registrars the adoption of special laws or rules of procedure that would apply in respect of these kinds of disputes?
Section 16.9 is also one that was touched on briefly this morning, as to the desirability of providing for a suspension in the case of objection to an existing domain name registration. This would be where one has obtained a registration and a dispute arises and there is an automatic suspension as a consequence of the dispute arising.
Section 16.10 is a provision that asks whether it would be advisable to consider certain domain names to be unchallengeable if they have been registered for a certain period of time.
Section 16.11 deals with the question of appeals. Section 16.12 the question of costs and Section 16.13 is the role of on line dispute resolution systems. (end of tape) There is the related issue of whether we should think of creating and adopting dispute resolution systems that also occur on-line or in an electronic space. So, briefly then that is an overview of the questions and issues raised in Sections 16.1 through 16.13 on dispute resolution. So, what I would like to do now is open it up to the floor and my colleagues up here in the front table are certainly welcome to intervene if they have any comments or observations to make. But we would like to hear if you have comments or observations on the dispute resolution sections. So, I will open it to the floor and as before we do have microphones and I would like to ask if you can at the beginning of your intervention if you could just once again indicate your name and the organization that you are affiliated with.
(Ms. Lucinda Jones, Consultant, Electronic Commerce, Office of the Legal & Organization Affairs, WIPO, Geneva): One point that I might make at the outset, which has come up in previous consultations on this issue, is that one of the objectives or goals that we are looking to evaluate is the desirability of creating consistent rules or principles by which disputes can be resolved on a global basis. This does not necessarily mean, however, that the resolution of disputes would occur in any centralized way or byone administering authority. So, for example, as has been discussed this morning, registrants from around the world would not have to go to the United States or to any other country in the world to resolve their disputes. Rather, that there may be some consistent set of principles applied to resolve disputes. These principles would be promulgated or applied by different centers of dispute resolution through different forms of dispute resolution throughout the world. And in that way they could take into account the particular regional characteristics or requirements of the parties involved in a dispute, say between two parties based in India, or one party based in India and one in Geneva. The resolution then takes on a different aspect and also in this context you can see the desirability or certainly the interest in looking into on-line systems of dispute resolution. In that case there may be alternative dispute resolution through mediation or arbitration, but again these are issues that we would be interested to hear your input and your thoughts on. Thank you.
(Mr. Pavan Duggal): Looking at Section 16 cumulatively. First of all Section 16 is in direct conflict with Sections 15.1.4 and 5 because either a person resorts to court resolution or he resorts to alternative dispute resolution, but he cannot resort to both at one and the same time. So, when we talk of B, when we talk of Section 16 we also have to go back to decide whether 15.1, 4 and 5 which of them will have to remain. Because 15.1.4 talks about agreement to submit to the jurisdiction of a particular court, whereas 15.4 and 5 talks about agreement to submit to alternative dispute resolution, both of them are contradictory in nature and cannot be in the same room. You can either resort to this or that, but given an option there will be chaos. Coming back to Section 16, I am of the firm opinion that when we are looking at Section 16 as a whole, I think the future of dispute resolution lies in Section 16 and not in court litigation. What I propose is on-line arbitration. We have a domain that has been registered, we are working on that, it is yet not up it is called www.cyberarbitration.com. And what we are proposing is, we are proposing on-line arbitration and the details that have been worked out are in such a manner that first of all its scope would be limited only to resolution of disputes relating to domain names. Number two, whatever disputes that would take place all the concerned parties, would agree to on-line arbitration by this cyberarbitration. For example, all the materials, all the presentations would be sent by the contesting parties on-line, if the parties so desire they can opt for an opportunity of a hearing, which would be a hearing of two or three days by a single arbitrator in the physical world. If not, they could still stick on to the concept of arbitration on-line. Both of them, both the contesting parties agreeing in principle that the award coming through shall be final and binding on them and shall not be challengeable in any court. These simple methods of arbitration we are planning to evolve. When we look at arbitration as is available on the Internet, whether it is the American Association of Arbitration, whether it is the Singapore Association of Arbitration, all these arbitrations really talk about arbitrations in the physical world, aside from putting up their web sites and letting people know as to who the arbitrators are, who the panel is and what kind of fee would be involved, nobody till now has been talking in terms of on-line arbitration. That is what we are proposing to do through means of this. And that could be very valuable, because a lot of people would be interested in solving their disputes. Some societies are litigious, they want to litigate, but the majority of societies do not want to litigate. India for example, is one society where we do not want to litigate. We would rather like to put an end to some situation somewhere or the other, even if it is more minuses than plus. But, somehow if that means the conclusion of a dispute we would rather opt for that. So, looking at that, that is what I propose regarding that. I also propose that the registries should not be an active participant, because then the impartiality of the registry is called into question. And then the credibility and the confidence of the registry at a future date would be called up in question, which can be very harmful to the entire system. Let the registry, let the registrar not be a party to these disputes. That was one option that we were looking at and of course there are some very obvious advantages that huge litigation expenses are being saved. It will be quick. It will not be greatly procedural and when both the parties agree that they will abide by the terms of the award we can still anticipate that out of a 100 awards, possibly 85 would go unchallenged. If at all, these challenging parties will come up to only 15%, but then that will help in solving a major chunk of this problem relating to domain name disputes. Thanks.
(Ms. Lucinda Jones): I think there is a great deal of interest certainly in alternative forms of dispute resolution, though I do know that we have a number of advocates and members of the court system in this State in the audience and I wondered whether there were any alternative views to adopting this form of dispute resolution?
(Mr. ....................): Of course, I certainly agree with Mr. Pavan Duggal that on-line dispute registration system is good. But, one point where I am not able to concur with him is that there shouldn't be any interference from the registrars. In any dispute or in any game the umpire plays a very important role, so there should always be one umpire. Either he could be called a registrar or he could be called by some other name. And one more thing, on-line dispute resolution systems are faster, I certainly agree, but when there is a dispute regarding the domain names either party should be given some sort of a password so that the third parties will not interfere. Because when physically people come and argue before a judge that is different. Because both the parties come, file the documents, evidences, affidavits etc., etc. So, to a large extent there is a certainty that the parties involved are only arguing the case. When it comes to on-line system, some sort of a mechanism is needed so that third parties will not take the other party for a ride, to avoid any mischief by the third parties. That is what I personally feel.
(Dr. P. Vyasamurthy, Manager, Satyam Computers): I am Vyasamurthy from Satyam Computers, replying to some of the points he raised. Nowadays the technology has so improved that it is possible to ensure that only the two parties concerned actually are involved, that should not be a problem at all. And in my opinion the registrar should only do the registration, he should not take part in arbitration. Arbitration is the responsibility of somebody else. At the request of the arbitrator the registrar must publish all the evidence he has with him. After that he should withdraw, that is how it should be. That is my opinion.
(Mr. Babkar, Administrative Staff College): I am Babkar from Administrative Staff College. I would like to comment on Sections 16.12 and 16.11. Firstly, the arbitrating agency when they give an award, they must also like the courts, decide who is to bear the costs incurred in this arbitration or whatever it is. So, then it will be mandatory on the people to really bear those costs, that is one point. The second point is appeal procedures. I think if we are going to have different arbitrators all over there has to be an appellant court type of thing on-line which should have a jurisdiction over all this. All must agree that, yes, for all appeals this will be the procedure and they will come and they will abide by the ruling given on that appeal. Normally, there are two or three levels. And on-line we have to have people with a very clear rule bias, who can really go into the legalities of the various procedures and what is the point of order, what is the point of justice seen and then give their rulings. So, these both have to be different.
(Mr. Richard Wilder): Let me just add to the previous two remarks by asking a question. In respect of the on-line dispute resolution, presumably there would be rules under which it were to be conducted and I was just wondering if you have any suggestions, in terms of the rules that would apply in respect of on-line dispute resolution procedures. And I presume when we are talking about that, it is not a court proceeding but rather an arbitration type of proceeding that is conducted and I would agree that in terms of the security questions that would be something that could be dealt with. There are technical means whereby you can limit access to that limited discussion group which would include the arbitrator and the parties, such that the information would not be made public. But, if you do have an opportunity if you could comment on the question of the development of rules of procedures in respect of on-line dispute resolution that would be helpful. Thank you.
(Mr...............): My comment is on point 16 cumulatively. Because of the implications of the Internet on electronic commerce which are totally on the global economy, I firmly believe that there should be a single authority which resolves the disputes, with regional centers in different parts of the world. There must be enough cooperation, ensured cooperation between all these regional centres which again finally report to that particular authority which is set up singly and in one part of the world. Thank you.
(Mr. Piramanayagan, Satyam Infoway Ltd.): I am . Piramanayagan from Satyam Infoway Ltd., I have a general comment on the dispute process. There could be two types of disputes, one occurring between two bona fide parties, two companies who are running business under the same trade name and they are competing for the same domain name. Another case is where there is a cybersquatter who has captured some name and tries to sell this thing. So, there has to be a line of distinction between these two kinds of disputes. One, between two bona fide parties another between a cybersquatter and a bona fide fellow who is trying to get this thing. So, in the first case, when a cybersquatter is trying to do this, he has to be penalized for doing this. And in the other case after on-line dispute resolution it should be awarded to whoever is more bona fide for that particular domain name. Thank you.
(Mr. Pavan Duggal (?)): Coming back to your query Richard, first of all reacting to what one of my friends just talked about, costs. I think we have to basically understand one basic thing that emanates from human nature. You have to ensure that both the parties deposit minimum costs prior to the start of on-line arbitration. Because, once arbitration gets underway either party may say, I do not pay. Then what? The system should not be made a mockery of. Therefore, when we look at on-line arbitration, like www.cyberarbitration.com, we envisage a minimum small fee, it could be $100, it could be $500, it could be a very small minimal amount, a token which both the parties have to deposit in recognition of the fact that both of them are honoring their commitment to go through this dispute via on-line arbitration. The problem arises if the on-line arbitrator decides to impose costs after arbitration. Where is the enforceability of that? Because people may say, look we only agreed to agree by the arbitration award, we did not agree to pay the costs. So, then again some counter questions come in. The more important thing as you talked about relates to procedures. Surely, when you talk of on-line arbitration there is a great amount that will help the system, number one, so as to make it more impartial. That will also make it more foolproof to any kind of influence vested or otherwise. Then, the procedures that we are proposing at cyberarbitration.com is the procedure that anybody wants in the world, that is the rules of natural justice, an opportunity of being heard. We look at a very simplified procedure, that is, if there are two contesting parties one would present a claim, the other would present a counter-claim or vice versa two claims and two counter-claims for the issues to be determined by the arbitrator on-line. And thereafter, the arbitrator shall call for evidence, and the evidence will be in the form of an affidavit. A plain and simple affidavit from both the parties submitting their evidence, all this taking place on-line. If after that, the parties want a hearing, we could have a provision of hearing of argument as people call it in court, probably a sitting for a day or two. In case either party wants to bring something in the physical world to really convince the arbitrator, that could be done. And then leave it up to the arbitrator who will give his award and put it on-line. And if the parties want to forego, because in this very competitive world everybody really wants to get away, get done with things and start moving forward. So, a lot of people would like to say look we don't even want a hearing in the physical world. So, this is our evidence, you decide for yourself and then that's it. Though, I do agree that the award that is likely to be given by the arbitrator under cyberarbitration should be open for appeal. Because if a dissatisfied party is there, it should not have finality. There should be some semblance of some order. Because as of now there is no legal system at place, we could possibly look at some universal cybercourt at a later stage, but that is only if on-line cyberarbitration manages to move ahead. I think my gut feeling alone would be that a lot of business houses in the world would be willing to go for arbitration. Number one, it will be very cheap as compared to court litigation. Number two, it will help save time. And number three, most importantly they will be able to get ahead. Because people are reconciled to the fact, okay if I cannot get this because this is on a first-come first-served basis, somebody else has got this, I can dispute it once. But I cannot carry on this dispute till eternity. Okay, I will finish the dispute right now and I will start another chapter. That is where the approach of the Internet user-friendly people are going to be, and the next citizens are going to be. Therefore, more and more people would like to put their eggs into the basket of cyberarbitration, rather than going for tedious litigation. Microsoft anti-trust litigation is going on very high, but nonetheless what's happening. It is taking so much time, it is taking so much effort, public money whatever. But, at the end of it we don't know what is going to be happening. So, therefore quick redress of claims is essential. Mediation may not be of such relevance or importance in the light of the tremendous scale of the Internet. Because, mediation would have a very limited effect. I can understand it more at an intergovernmental level of play. But looking at the medium itself you don't know how its growing. Its growing so exponentially. We also don't know what the scenario would be in another two years time. Therefore, I think on-line arbitration would be your best bet for the time being. Of course till newer technologies develop. Thanks.
(Mr. Richard Wilder): To just add one more question to the mix here. I know that in some of the consultations we have had there have been some trademark owners that have wanted to retain the option of litigation in national courts. In other words, not be restricted to one mandatory system of dispute resolution, whether it is arbitration or on-line arbitration, but rather to have the option of retaining litigation as an option. I was just wondering if you had a reaction here, especially from the perspective of India, whether or not there would be some desire to retain litigation in national courts, especially from the trademark owners as an option in dispute resolution.
(Mr. Pavan Duggal): I think their desire would be paramount. I mean let's be honest. Why? Because litigation in India is inexpensive as compared to the United States or Australia or otherwise. Their desire would be paramount, but by the very nature of the allotment of domain name systems, its on a first-come first-served basis. Come what may, this is an irreversible process which has taken place and much that we might try to think of another system or another utilitarian set-up, this will not come into place. We have to be alive to the fact that this is irreversible. Be that as it may, assuming that I as an Indian owner of an Indian trademark want to litigate, and want to reserve my right to litigate in India. What is the effect of that, would that bind Network Solutions, would that bind that Internet authority? It may not. International law in any place is not that well enforced, the enforcement is not that much there. There is no penalty attached to it. You can only expect an intergovernmental agreement to say, look this decision has been given by an Indian court therefore the courts there should honor it. The word is the courts there should honor it. But, the on-line system of Internet will have a very valid legal argument to say, sorry we are on-line, we are not in the physical world, we are not covered by your laws, do whatever you want. So, we are back to square one. So, after putting in so many years of litigation in India, after putting so much of money time and effort, I get a decree, I get an award from an Indian court. Can I enforce it? My answer would be a strong no. I cannot. So, why try to waste time? One has to be more pragmatic, that is the position as far as the third world is concerned. And more and more as time is passing by, the choices of the Internet regulatory authorities argue that we are now not bound by degrees of the physical world on an on-line system will increasingly find judicial acceptability. As a lawyer, as a practicing attorney I find it will be extremely difficult even if I get a decree from an Indian court to execute it against the controlling authority anywhere else. Therefore, a more prudent man, a more prudent Internet user would say, okay I can't change this first-come first-served basis, be that as it may, let me try my luck once. Otherwise, if I have failed in my luck forget about it. Let me try something new or never again. That will be the project not only in India, but throughout the world, rather than to keep on litigating and for what end and to an uncertain unknown future. We don't even know what is going to take place tomorrow. By the time my litigation finishes the Internet would be zillions of years ahead.
(Mr. Richard Wilder): The situation I was thinking of was again from the perspective of a trademark owner and especially one individual who is a practicing cybersquatter. If you had a dispute resolution system that was effective in respect of a single domain registration, some companies are saying that is not good enough. That if they want to be able to go after one individual and get an injunction against that individual then they feel that the only adequate remedy they would have would be national courts in order to bring an injunction against them, an injunction against the individual to prevent them from continuing to register that company's name or variations of that name as a domain name. Again, even though it is complicated now the world today is less complicated than it will be in the near future, when people are planning additional top-level domains. And also when you have more than one registrar that is registering for the same registry. In those circumstances, bringing a court action against a registrar in a single country may not be wholly effective. Therefore, this need for alternative forms of dispute resolution may be greater than it is now.
(Pavan Duggal) I think I can't agree more with what you have said, except that two remedies would always be available even in spite of on-line arbitration at any point of time. But then they shall be limited within the national jurisdiction where the cause of action takes place. For example, if I am in India and if some Indian does cybersqatting and even though I am a U.S. citizen, its very well open up to me to come to the national jurisdictions of Indian courts and ask for an injunction. Because, an injunction granted by U.S. courts may not be that effective in actually injuncting me. And number two, asking for damages under the law of torts within the local territorial jurisdiction where the cause of action takes place. Those two remedies are very effective, are very spontaneous and are forthcoming immediately from the judiciary. So, they can be taken care of. But, I think on other issues cyberarbitration could be an important issue. Thanks.
(Mr................): If the registering authority states that the domain names are not transferable or not resalable etc. except by the ISP who buys it in bulk and redistributes it, the person who gets a domain name for his companys use or his own use should not resell it. If that is done, it automatically gets cancelled. If such a practice can be implemented then the problem of warehousing can be avoided. And they can also bring a social pressure so that it always happens in the Internet world that nobody will buy from a third party other than by direct registration. If somebody else registers tata.com I just ignore that, I don't need to buy it. Why will I buy it if I am not tata.com? Tata can change its name rather than buy something from somebody who has registered all over as tata.com. Okay you can simply ignore that, that would be the easiest thing.
(Ms. Lucinda Jones): I would be interested in your experience generally as users or owners of domain names, as to what your response would be to Section 16.10 and the functionality of having a system by which domain names which remain unchallenged for a certain period of time then are barred from being challenged. Do you see this as being a feasible alternative or would you foresee problems in taking that approach?
(Mr....................): Well, let me get back to the issue of trademarks which are owned in a particular region. How does this lie in conjunction with Section 14.6, which says that the desirability of requiring certain trademark or similar searches to be performed prior to the registration of a domain name. So, how does this address that issue if we have a database of trademarks when we are looking at an enhanced IANA or an enhanced registry which is going to take care of the registration of domain names? This I think would be a great help to prevent such sort of situations where a trademark owned by a different entity or a different person is not registered by another person. And coming to this point, where you just ignore tata.com or something, in this age where a domain name also is speaking of a corporate identity of a particular company it really is a serious issue to have a domain name which resembles the name of the company or which resembles the trademark owned by the company in any way. So, in this age where promotions are basically driven through a web-based promotion cycle, where companies today put something in their web site and tomorrow they go to the print media to tell people that we have put so and so and so on in our web site which is opened to the people. So, it is really hitting at the corporate identity of that particular company. So, if any paanwala (beetle-leaf vendor) in Bombay, if any paanwala in any corner of a country goes and registers on the web site in the name of Tata, it is really hitting at the corporate identity of Tata. Thank you.
(Mr. Richard Wilder): We will be getting to those kinds of questions in respect of appropriation of a well-known trademark and the questions of dilution. Later on we have a specific topic on that issue.
(Mr...................): I have one question. You see in India there are several disputes such as passing off actions and all kinds of things, now that will take many years. Suppose a party has got a weak case he opts out of this arbitration (end of tape)..................... he goes to litigation, it may be somebody who has got a big case or he wants to simply exploit the well-known or reputation of these things, so he can drag on the proceedings for many years. How do you control or regulate this kind of harassment? Do you foresee that kind of have you thought on those lines?
(Ms. Lucinda Jones): I think you have touched upon one of the issues which is of great concern to many people in the Internet community and users of domain names. And one that I don't think we are in position to take a position on, simply because it is one of the issues that we are considering. The possibility of becoming embroiled in long-term and very costly litigation is one impetus for the development of alternative dispute resolution procedures. We would be interested to hear of such experiences. So far, we are told that that has not been the experience of many users. The litigation has tended to have been taken against cybersquatters and has not resulted in long-term litigation of the type that you mentioned. However, part of this Process and some of the evidence that we are seeking to obtain through this series of consultations is evidence of disputes which have occurred in relation to all types of disputes relating to domain names. So we are at this stage gathering anecdotal evidence. But the concern that you have touched upon is certainly one that is behind this Process and we would see that the development of dispute resolution procedures as well as measures of prevention of such disputes would be the way to address the problem that you have identified.
(Mr.....................): This is regarding point 16.10, where the desirability of barring claims against certain domain names is mentioned. This would I think for the developing countries and countries which are late entrants and organizations which are very late entrants, probably this would not be a very fair deal. Because they for a fairly long time may not even realize that their interests have been affected. So, it would be unreasonable to expect within a certain period that they would realize and they would actually have a formal dispute resolution process. So, this is a bit of a problem where it affects the interests of companies in the third world, in India, in Africa and in countries where organizations are not yet fully into electronic commerce and into this field.
(Mr. Pavan Duggal): Just one short point relating to Section 16.9, that is the reversal of existing procedures of law. You are presumed to be innocent unless proved guilty. Section 16.9 has worded it in a way that you are presumed to be guilty unless proved innocent. There is no rationale in suspending immediately any activation of any domain name on receiving any objection which may be frivolous, nullified or mischievous. If the time that objection is adjudicated upon by the concerned authority and a prima facie opinion is formed, not a final opinion but a prima facie opinion is formed, a suspension can be effected. But suspending immediately upon receiving an objection does not stand up to the principles of natural justice or good conscience or equity. Thanks.
(Mr. Richard Wilder): Yes, typically that remedy is discussed. This notion of providing suspension in the case of objection. Its raised in order to address the situation of someone having a domain name that interferes with someones trademark rights and under that domain name they are offering some products or services that might cause some dilution of the legitimate trademark owners rights. For example, if you have a well-known trademark and someone then appropriates that mark into a domain name and is offering pornographic services, it might cause some dilution to the mark which the trademark owner finds difficult to accept even for a short period of time. The idea there is that there would be a notice provided that there is interference between the trademark and the domain name, the use of the domain name will be suspended automatically pending resolution of the dispute.
The other argument is the one that you gave that is there is this element of unfairness of somebody just saying that there is a conflict and therefore the domain name should be deactivated. But again, the argument on the other side is that if you don't deactivate it immediately there is a possibility of some damage being done. I am not suggesting the way to resolve this, just trying to point out that there are different points of view on this. Another possibility would be in that context that if someone asks for the suspension of the domain name, there be some bond that's put up either to protect the registrar or to protect the person who sought the registration of the domain name to indemnify them against any damage or harm that might be caused.
(Mr. Pavan Duggal): But a lot of litigations recently started injuncting Network Solutions from deactivating domain names of people or anticipating problems after some objections or disputes have arisen. And the American courts have been pretty liberal in granting that kind of injunction directing Network Solutions to maintain the status quo. Be that as it may, if you are into that kind of an argument you may still open up a Pandora's Box of litigation for the registering authority. I mean, it is walking on a very tight rope. This way there is a big well, that way there is a big gorge, where do you go? It is very difficult to balance conflicting interests because the courts have been pretty liberal in granting stay orders against Network Solutions in '97 and '98, directing them to maintain the status quo and not to deactivate domains and things like that. And that would also lead to claims of voluntary compensation against the registering authorities. Well, would the registering authority do its registration business or would it go about litigating and fighting the monetary claims and broader questions will arise. Thanks.
(Mr. Srinivasa Rao, advocate): This is regarding Section 16.1.3. I am Srinivasa Rao, advocate. I am of the firm view that Section 16.1.3 which deals with on-line disputes as Mr. Pavan has rightly put, should be given utmost importance and it should be placed above all. It is not that the disputes cannot be resolved, but that the technology which has given birth to all of these disputes can also be resolved by the same technological means. And, this is regarding Section 16.9, and the general presumption that youre presumed innocent until you are proved guilty that holds good in almost all situations. As Mr. Pavan rightly put it, the suspension should not be automatic simply whenever there is a grievance. The suspension should be in the right spirit in its right perspective, in the sense that adequate opportunity should be given before switching off the domain name, as has been talked about by the earlier speakers. Thank you.
(Mr. Richard Wilder): Are there any other comments then on Section B on dispute resolution?
(Ms. Lucinda Jones): I would just like to reiterate my previous comment. As part of this process, we are trying to gather anecdotal evidence from each different region as to the number and types of disputes that have arisen. The three types that we have generally identified as being the most common, the cybersquatting or warehousing cases where you have one party clearly in the wrong registering a number of domain names and then seeking to sell them at profit to a person who may have an interest in a company connected to that domain name or with an intellectual property right connected to that domain name. The second type, as Richard earlier identified, being where there are two parties who may have certain rights to the domain name string or words and may operate in different areas. An example of this was a dispute relating to the name Prince, the United States sportswear company and a United Kingdom based information technology company, who both therefore had equal or legitimate rights to use the name, but because of the unique nature of a domain name, were unable to resolve those amicably. And the third type of dispute, which we haven't heard much about today, is where there is one party seeking to register a domain name but not for commercial use. In that case it may be for parody or criticism of a company or operation and where there are separate and different questions which arise. We have found through this course of consultations that in each region there are great differences in terms of the number of disputes and the type of disputes which arise. That may be because of the procedures in the particular country code top-level domain or because of the principles or processes followed by the registrar more or less disputes may arise. So we would be very keen to receive those comments or any anecdotes that you may have as to such disputes through our web site. It would be particularly valuable to us.
(Mr. Richard Wilder): It would also be valuable if there were those here that would like to expand on the ideas laid out in 16.1.3, that is the on-line dispute resolution system. Because I get the sense from the discussions here today that there is a fair amount of support for that idea. Obviously the implementation of it would require some thinking and some work. One thing I would point out is that even though you could contemplate an on-line dispute resolution system, the actual function of it would still rely on people, on human beings, the arbitrators that would be resolving the dispute. So, even though it would be conducted on-line and would involve electronic subject matter, that is the domain names and the conflict with the trademarks, you would still have to have arbitrators that would look at the substance of the case and make a decision. Are there any other comments or questions then in respect of Section 16.1 through 13?
(Mr.Piramanayagan): This is on 14.8, dispute prevention. This is a very fascinating idea of having more than one unique name, I mean one name being shared by more than one corporation or one user. But from a technical perspective, I am from Satyam Infoway Limited, I am a technical guy, and from a technical perspective I can see that basically people register domains mainly for web sites as well as for e-mail identities. From a technical perspective, I can foresee this kind of solution working for a web browsing business. Where there is a human being who is trying to browse, for example www.ibm.com, then he is taken to a directory listing or gateway web page where he is given all the people who are registered as ibm.com and a brief description about each of them. So he chooses which one he wants to actually go to. Whereas when we think of the e-mailing process the ibm.com there is a protocol which is not passed through any human beings. The e-mail protocol is going to look for the domain ibm.com and then push all the mails to the corresponding mail exchange. So, I am not particularly sure if this is going to be feasible, technically, sharing of domains between multiple parties. Just a comment I thought I would add to this point. Thanks.
(Mr. Richard Wilder): That is very helpful. I think that the solution laid out in Section 14.8 might work out particularly well for the kinds of disputes that Lucinda Jones was talking about, where you have legitimate claimants to the same name, like Prince for example. So you have prince.com, prince.net all whom would be domain names that could be listed in a single directory listing service when you type in the term "Prince." And so would then give you a menu of options to choose from. You would presumably know about the nature of the company you are looking for, so when the descriptive information came up you could make the proper selection. You are right in the sense that, that technology does exist, it is possible to do that. It is a question of deciding what its proper role is in the context of dispute prevention or dispute resolution and then applying it that way. So, if you have comments along those lines that would be much appreciated.
(Mr.Piramanayagan): No. I did not get your point. What I meant was the same domain, prince.com, for example. I thought that was what this point meant. Not two distinctive top-level domains, not two distinctive domain names but prince.com itself as being shared by more than one guy, I thought that's what this point was mentioning. Could you clarify on that?
(Ms. Lucinda Jones): I think that the confusion arises because at the moment, under the current technology, one unique identifier such as prince.com can be owned by only one person. As I understand it, the developments in the process will not change the capacity of having only one unique identifier. That is because under this Internet technology, that name has to be translated to a set of IP numbers and you can have only one set of numbers in the system. There are a number of different proposals for reforming this system, for creating listing or directory services and I understand that Microsoft at the moment has one in process. So that we will operate more through the search engine procedure, by which if you put the name Prince into your search engine instead of coming up with just prince.com, much like in a telephone directory you will receive a list of the prince-related domain names with a short explanation as to the area of business in which the owner of that domain name is operating. So, you will have prince.com-United States sportswear operator, prince.com United Kingdom based information technology consultant and in that way you will avoid the problem of confusion whilst still operating within this system of technology. That said, we are very aware in this process that the proposals for reform and the issues that we are discussing are very technology-based and that the technology in this area is developing very fast. So that whilst the unique identifier nature of the Domain Name System is the fundamental reason why these problems have arisen, that may well change in the future. Nonetheless, we can only address the technology as it exists at the moment and for the foreseeable future that meant that prince.com can exist for only one entity.
(Mr. Pavan Duggal): Yes, just one comment to what Lucinda said. She specified three categories of disputes and she was looking for instances. Now, there are two experiences I want to share specifically that are relevant from an Indian subcontinent point of view. Number one, we are having a lot of problems in two areas. First, the awareness about the Internet is at a dismal low. We had an international fair called the IT World at New Delhi which happened to somehow whip up media fancy and therefore a lot of people were interested. Now, what is happening is that since all of these people are not very much conversant with the usage and the technicalities of Internet, they apparently would go to a web hosting service or a person who is touting, "look I will host your web services, I will get your domain name registered." What is happening is that the people in their good faith say okay, I want this particular domain name, register it. They do it under that implicit faith that he will register under that name. But what happens is that the concerned vendor does not register the concerned x person as the owner, for the administrative contact that vendor would put his own name. So, for all practical purposes the vendor would become the owner of the domain name. Whereas the actual owner would have nothing in his hand barring just the billing contact, because he has to pay up the money. Now, we have had a number of problems regarding that, and we have written to NIC. In some of the cases NIC has agreed and they have said that if you are able to get a letter from the original owner saying I was the one who did that, then we got the concerned certificate and sent it across and they changed the names of the ownership. But that is one major problem that is coming up more so in a country like ours where the information and awareness levels are very low.
Number two, there are certain disputes that are beginning to arise particularly in Delhi. A person has a domain name which is Canot Place for example. Canot Place being the great shopping centre of Delhi. Another person wants to register another domain name with the name Canot Place of India. So, the person who is having the first domain name is beginning to object that look the second domain name of India is only an extension and is basically buying out of my goodwill, hence you should not be allowed to have that domain name. Those kinds of disputes are beginning to arise though none of them have reached the courts as of now. But two or three of them are right now at the litigation or on the legal notice stages. So, these kinds of developments are also starting to take place. These are the two typical developments vis-à-vis Indian conditions that I wanted to share with all of us here. Thanks.
(Mr................): Well, going a little ahead from what Mr. Duggal has said and what he pointed out about the web hosting service providers, there are a few web hosting service providers who own a set of domain names. Their punch line goes like, "If you have messed up at wwwxyz.com why don't you go to wwwxyz.to." Now because they own top-level domain names which they in turn resolve to some other name which they register on behalf of this particular company which is applying to that particular hosting service provider. So, how are these issues addressed?
(Mr. Richard Wilder): I was just telling my colleague Lucinda Jones that we are now actually into Section C, which deals with the question of well-known marks, which is an issue that you brought up before as well. So, maybe what we can do is turn to that section dealing with the process for the protection for famous and well-known marks.
(Ms. Lucinda Jones): If we look at Section C of the RFC, we would invite you in this area to propose procedures for the protection of famous and well-known trademarks in the context of Internet domain names. Such procedures have been considered during these general discussions on the Domain Name System. And then we would ask you to address a number of specific areas which cover this fairly broad and developing topic. Specifically under 18.1, the desirability in fact of providing such protection for famous and well-known marks and then, going on, we would ask you to describe to us or suggest the processes and any relevant criteria that may be developed for determining whether such protection should be accorded in any particular case or for any particular name.
In Section 18.3 we would look at the relationship between any such protection for marks determined to be famous and well-known for the purposes of the Internet Domain Name System and the concurrent protection of famous and well-known marks under the Paris Convention for the protection of industrial property and the TRIPS Agreement.
Under Section 18.4, we are addressing the development, administration and content of any databases which may be devised for listing the status of such well-known marks. They could in the event be national, they could be international and global databases. But this has proved to be a fairly contentious subject and one we would be interested to hear your views upon.
Going on to Section 18.5, we would then look at the desirability of providing special measures of protection for famous and well-known marks and in the area we will touch upon in the final part of the RFC and that is the possibility of the introduction of new generic top-level domains to this area. Again, a suggestion which is created some dissent and some controversy amongst holders of trademarks in particular. And measures to prevent such marks in any new generic top-level domains from being registered as domain names by persons who aren't entitled to use those marks.
In Section 18.6, even though this Process is specifically concentrating on generic top-level domains we are certainly very interested in looking at the country code level domains, particularly because there are more than 200 of these different registries under country code domains, with widely varying procedures. We are looking then at the desirability of extending protection that may be developed at the generic level to the country code level of the domain system.
And finally, we would then look at the possibility or necessity of providing procedures to cancel the protection of well-known marks. Because what is being proposed in the system is a very stringent and widespread form of protection and there would possibly need to be measures to remove such protection if it proved unwarranted in any particular case. So, I would then open the floor to any comments that you may have on this area of the protection of famous and well-known marks.
(Mr. Richard Wilder): I would just add one thing. It would also be interesting to have any input, especially from the trademark attorneys here in the room, as to how the question of the protection of well-known marks is treated nationally. Because I can tell you that the consultation that we had in Tokyo, the approach they have there is that the Japanese Patent Law Office which administers the registration of trademarks has developed a list of marks that are considered, in accordance with their criteria, to be well-known. And they are one of the countries then that would support the development of the database, as is suggested in Section 18.4. As Ms. Jones had indicated, there is some controversy there, because some countries resist the notion of developing a list. They rather prefer to have the question of whether a mark is or is not well-known be decided on a case by case basis. And the other thing to be kept in mind here is that we are talking about a process. A process for the protection of well-known marks and we are asking you to provide some indication as to how that process can be structured. Its important because this, depending upon the suggestions or approaches that are suggested, may be a process that is administered in part or in whole by the registrar, the domain name registrars which would, depending upon the nature of the process, could be very complicated for them to administer. So, bearing in mind that is a possibility and it would be interesting to have your view points as to how such a process for registrars in making these determinations could be instituted. Thank you.
(Mr...................): ( A questioned asked by a gentleman not speaking into the microphone and it was not possible to hear what he was saying).
((Mr. Richard Wilder): No. Well, Section 18.3 does talk about the relationship between the protection or the process that is being discussed here and the protection of well-known marks under the Paris Convention and the TRIPS Agreement. Both, the Paris Convention and the TRIPS Agreement do mention the protection of well-known marks and there is some substantive content to those obligations under both the Paris Convention and the TRIPS Agreement. But, in this series of questions we are not asking so much for ideas as to the substantive content, that is, what is a well-known mark, but rather the process whereby once that determination has been made the well-known mark can be protected. We will just leave it at that, that if you can make some suggestions on process that would be beneficial. Again, it would be helpful to us in terms of the substance of well-known marks if someone could give some brief explanations as to how that question is addressed in India. Especially, as I said, in light of the fact that the approach taken in other jurisdictions Japan for example, is to establish a list against which then registrations for trademark protection are compared.
(Mr..................): (A gentleman not speaking into the microphone at the beginning). Because in India under trademarks law there is a provision called defensive registration, some of the trademarks which carry a lot of goodwill irrespective of the class that they belong to, the protection is accorded in all the classes for that particular trademark. Though the procedure is not that popular and there are only a few defensive registrations. But if the name is an invented word, just for example let me quote Kodak. Kodak is an invented word, so it is certainly the intellectual property of Kodak photographic company. So, such property should be accorded protection. And of course protection also depends upon the other parties also, they also have to take necessary measures to protect their (end of tape) ..................even for that matter Refrigerator was a registered trademark. So, now Refrigerator is a generic name. And another example I can quote is Xerox. Of course it was about to become a generic segment, but at the final phase they protected it, so most of the people they tend to call the Xerox as photocopy. So, some sort of a protection should be given to the well-known domain names.
(Mr..................): I will add to what our friend has said. Presently our statute does not give any definition, its only court rulings as to what amounts here for the well-known mark, we base that on the rulings of court. But, there is a Bill pending in Parliament on trademark amendment that was introduced in 1995, where provisions are made for a service mark protection of well-known trademarks. There, under Clause 11 of the proposed Bill there is a specific reference to a well-known trademark and from that clause the interpretation is, knowledge of the relevant sectors of the public. That will be the test, as it is in the U.K. Trademarks Law of 1994. The same criteria is proposed to be adopted in our country also even when the Bill is legislated into your law.
(Mr. Richard Wilder): All right, itss about 3.30 p.m. now so as it is close to a tea break this might be a good place to break. When we come back we can take a look again at this question of well-known trademark protection. Because I can tell you that for many trademark holders this is really an important issue if not the key issue at least at the moment. Simply because of the fact that a number of companies are finding that their well-known marks are being appropriated or taken into domain names. And then they are dealing with problems of fifty to a hundred a week of these domain names being registered and having to deal with these problems. So, its a large and its an increasing problem.
(Ms. Lucinda Jones): And in that area as well, the final area that we will deal with, which is the possibility of addition of new generic top-level domains, you will quickly see increases the possibility for such problems and increases the difficulty for trademark owners policing such a plethora of new domain name areas. So it is certainly a potent issue.
(Mr. Richard Wilder): So, lets take a break for about 15 minutes and then we will come back. Thanks.
(Mr. Richard Wilder): Lets begin now our fourth and final session in the domain names process consultation. And before I do, I wanted to read a couple of things. One was an excerpt from the Economic Times of Today published in Hyderabad, talking about electronic commerce. There is an article that says, 'All Eyes on E-business'. There was one paragraph down here and I thought that it might be useful to illustrate what we are talking about with the protection of well-known marks. It says, 'Credit card companies like Visa and Master Card look to E-commerce in a big way to boost their sluggish credit card sales. In India banks like ICI-CI Bank look at E-commerce as the differentiator to get part of the market share of Indian banking'. Certainly, if a bank like ICI-CI were using electronic commerce as a differentiator they wouldn't be willing to accept somebody diluting that which differentiates them. That is, if somebody else were to take a domain name that is phonetically the same or a slight variation from theirs, also engaged in the same line of business, it would eliminate that differentiation and make it very difficult for them to continue to maintain and even build the market share in that business.