browse comments: WIPO RFC-3

WIPO RFC-3
ggd@cybercounsel.com
Fri, 19 Mar 1999 01:31:06 -0500

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I am a practicing lawyer who has handled over fifty domain name trademark disputes in the past three or four years. I have previously commented on the RFC's, but at this time have only a few minutes before your deadline to comment. One of your members has made clear in correspdence he accidentally sent to me that he does not want comments from lawyers "since they are always representing their clients." This comment is unfortunate, both in that it presents clear evidence that some members of your group are biased and do not really want to hear different points of view, and it ignores the fact that all of us who work on public issues are there to represent a point of view of some kind. The issue is not whether we have a point of view that you agree with or disagree on, but whether there is merit to the points raised by other people. That is supposed to be the whole point of democratic procedures and your own rules for RFC's.

In general the detailed comments I would make are similar to those of PRofessor Michael Froomkin of Miami University, for many of the same reasons he expresses. However, here are a couple of points I hope someone will look at carefully. The law or reasoning behind them is well documented elsewhere so I will not take the time to do so here.

First, the WIPO proposal on domain names and trademarks is an example of making laws and rules to deal with the one percent or less of the trouble makers. You impose costly, bureaucratic processes on everyone, just to deal with a tiny minority of bad guys. MOST DOMAIN NAME DISPUTES ARE NOT OVER CYBERSQUATTER RIGHTS, but are legitimate businesses disputing rights to domain names in an environment in which there is little or no law, and you should not assume the big guys are correct and always right. Often they are not, but they have more money and bigger law firms, so they will win whether they should or not. There are perfectly adequate remedies available in the courts of the world, and a developing body of law. WIPO should stay out of this arena, no matter how hard the big companies and law firms push you. The unusual freedom of the Internet is what made it grow as it has, and your kind of unnecessary regulation will kill that growth and turn the Internet into the property of the big companies and govern
ments, and not the little people who pay for it and use it daily to create better lives for everyone.

Second, you assume, incorrectly, that the registration or use of a domain name is a trademark use, per se. It is not, and there is a growing body of US cases that make this clear. The problem with your proposal for arbitration or any process of review is that you force the small businesses of the world into expensive and time consuming processes that are unfairly burdensome to them. Most small business domain name owners are not cyberquatters, and in fact have just as much right to use a particular domain name as anyone else. I question whether the US could even adopt your proposal without serious constitutional issues over whether a US citizen can be forced to submit to a foreign tribunal as a condition to use of the Internet.

Third, one point you make somewhere that is correct is that much of this domain name dispute issue could be remedied by requiring that all regisrants provide a true name and address, so that they can be contacted and also sued if need be. One of the problems of these cases is not a lack of a forum to hear the dispute, but an inability to find the purpetrator. THis applies to defamatory web sites, and infringing websites or email. Please look for things like this that aid all of us to make the Internet free and workable, but requiring minimal rules that allow us to bring into play existing laws and rules. We do not need more rules, more hearings, or more regulation.

Fourth, the solution to the domain name trademark dispute lies in a technical directory as pointed out by Judge Pregerson in the Lockheed skunk works case, not in trying to solve the issues by litigation. Even as a lawyer, I can tell you that I tell my clients all the time -- avoid litigation, arbitration and mediation at all costs. Find other solutions. WIPO, by getting into the intellectual property issues of the Internet, without realizing the impact of what you are doing, will create confusion and dissention in the trademark law field that is costly and unncessary. You have no business enforcing your views on the various countries of the world on the trademark laws and how they should apply. You and the other technical people that have come up with these IP rules for domains clearly do not understand that the problem is not bad people stealing domain names, as a few big companies would have you believe, but the fact that their is a fundamental inconsistency between the existing national territorial l
aws that base trademark rights on different facts and rules for each country, and also by convention allow at least 42 classes of marks that are identical. You cannot solve this by imposing your rules, hearings and costly intervention at the world level. Leave these issues to the courts and the governments of the world, or at least deal with the real issue and not this mantra of cybersquatting.

Ninety percent of the demands my small clients get from big companies no longer even make a pretense of there being any real trademark issue, they just say, "I went to register my trademark as a domain name and found that you were using it -- give it to me!!" Please consider the long range, very bad, implications of what you propose and stay out of this issue of who is the "rightful" owner of domain names versus trademarks. The facts of every case I have seen are different and sometime my clients are wrong, in which case I advise them to comply with the law, and sometimes they are being unfairly preyed upon by big companies that know the little guy has no money to defend his legal rights, so they can be hijacked by the moneyed companies. I am not a socialist, incidentally, just one who is incensed by the unfairness of the rules you propose, especially when they are not necessary, except for requiring registrants to provide a true and correct place to reach and if necessary sue them.

Finally, I think you are also going to regret the international aspects of these proposals, in that you are intervening in established commercial law as to rules relating to jurisdiction and where it is fair and appropriate to litigate legal issues. Because you are trying to impose your views of the law, in a world where the Intenet makes national boundries a problem, you are in effect legislating jurisdiction rules for the courts of the world. Bear in mind that just because this favors one group or country at this time, the tables can turn and it can be disasterous to others at a later time. You have not given sufficient thought to these issues to be dealing with them, or at least you provide interested parties with no basis for beleiving your have properly considered these issues.

In short, please do not propose or adopt the IP rules on domain names, since you are not representing the vast majority of businesses, the small and medium size ones, and the little people. The internet should belong to all of us, not just those with the money to lobby and litigate. Your proposal and any solution may require several more years of study, or perhaps in a few years we will have developed some bodies of law that will solve it, without your getting WIPO involved.

Your proposals on this issue remind me of a story a Brazilian lawyer told me a few years ago "All legislative and administrative bodies are self perpetuating, since whenever they see what they think is a problem, they pass laws to fix the problem, which of course creates more problems, and a never ending circle." Please break the circle and leave these issues to the parties and the courts, and do not, as you do, assume domain names are trademarks and that all disputes over them are because of cyberquatters -- they are not!

Sincerely,

G. Gervaise Davis III,
Davis & Schroeder, p.c.
Box 3080
Monterey, CA 93940
ggd@cybercounsel.com

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