I noted the very sparse reaction to your call for comments on your questionnaire. I believed there would be such overwhelming response that i did not choose to further complicate the process. In light of the lack of other commentary, please receive and post this commentary on the ICANN and UDRP systems and proposals for alleviation of the pressures now existing. Karl E. Peters ( karl.peters@bridgecompanies.com ) Association for Domain Owner's Rights - Domain Owner's Constituency http://www.ador-doc.org
Dear People of the WIPO,
I appreciate the invitation to provide commentary and input into the process of establishing further regulation on the internet names and numbers arena, the scene of many a battle, past and future. The WIPO's position on most of these issues is quite well demonstated in its actions and determinations on individual cases in recent months. It is clear that there is a serious choice of bridges to cross now. as we will either choose a bridge that leads to a head-on collision or one with fewer obstacles. I do not forsee any option that will conveniently avoid all potention obstructions. This said, there are very certainly ways far preferred over others. That is what I want to address here below: UDRP
You site that ICANN has adopted many of the proposals from the first report and this is true. You further state that the wide usage of the UDRP proves its need in the internet community, and this is not to be denied. The problem here comes in the decided advantage given to any protesting company over the current holder of a given domain name. The system allows the protesting party to chose the singular arbitor to be involved in deciding the case. It is being proven now that smart protestors are watching the trends and beginning to chose those arbitors that most consistantly find the protesting part to be justified, thus winning the use of the domain. We can not blame anyone for chosing a path of greatest likelihood for success, but where is there any justice for the domain holder who has no say at all in the arbitration, that, by its very nature, is supposed to be non-partison. I believe that a URDP is vital, but it should be modeled after those where each affected party chose one arbitor and those two arbitors chose a third that they can agree on. In this way, each party has at least some representation of its case to the process where it does not under current rules. Should the WIPO ever be taken to task over some of its rulings, only a matter of time until this happens, you certainly would not want the protesting party to chose the sole arbitor in your case, would you? Of course not! There is NO justice there and there fore fails to meet the objective of a truely fair dispute resolution system. The Underlying Problem
I believe the underlying problem in unique name and number registration is in the simple impossibility of everyone getting the name they want in the most desired TLD. As Will Rogers said many years ago about land, "they just aren't making any more of that stuff". While the supply of land or domain names are finite in any given location or TLD, there is new and fervent demand for it everyday. It is important to understand from the outset that under no circumstance will every person or company with legitimate claim to the domain to FirstBank.com or any of a million others like it will ever be satisfied. It just won't happen! Even if we set up a complex systen of location based TLDs and Secondary LDs and so forth, there will still be a conflict somwhere that can not be resolved by subdividing cyberspace. (i.e. firstbank.us.ga.atl or firstbank.uk.lon to reduce pressure between name holders in Atlanta and London who have legitimate claim to firstbank.???) What I am saying here is that we must give up the idea that there is a perfect system that will solve these problems. Instead, we should educate people in how to make do with names that are available at a price they can afford when they are ready to enter the virtual real estate game. Just immagine if I were to sue my neighbor because he holds a piece of land that I think is perfectly and "uniquely" suited for my new home. I would be laughed out of any court for lack of foresight or ability to buy this land under normal conditions as anyone else with a perfect and uniquely suitable use for the land would have to do. What exactly is it that makes the internet addressing system diferent in real terms? The only one I can see is that it is young enough of a system that large corporations and governments who lacked foresight (or may be newly re-named) feel they can use thier economic and political muscle to adapt the "real estate law" of the internet to favor their greater financial power over those who arrived first, be it for better or worse. This is exactly what I feel I am watching before my eyes as we communicate, the ever quickening demise of the rights of the individual and small business entity who had the foresight to help make the internet the populer venue that it is. (There were MANY little guys on the net before most of todays corporations found it worthwhile to be there at all; and now they want to claim the choice pieces for themselves simply because they can influence the law that governs the distribution of them. In my humble oppinion, the WIPO has played perfectly into their hands and continues, through reports like this one will likely be, to turn the tide on the true backbone of the internet, the individual users, in favor of the more finacially generous "strongmen" of the conflict, the big trademark holders and institutions who try to parlay size in one realm into position in another. If you allow this to succeed, you will have sold out the very people who made the internet work as it does today to begin with. Without the individuals who populated the net in the early days, little or no value would have been ascribed to this real estate at all. Now the larger interests recently entering the stage are trying to wrest it away and make it a semi-private playground complete with consumers. INNs
By the very nature of an INN, they create no conflict because they take it upon themselves to chose names that do
not conflict with anything. Perhaps we should simply allow such names to be held in trust in each registry from the
time the name is decided upon and proven harmless to protect the product from scalping. The UN could then place
information about the product on these sites for the benefit of doctore everywhere or simply squat on them in the
comfot of knowing that at least no one could use the addresses to defame the product or obscure its meaning or
recognition factor.
Personal Names
Pressure on these names can be reduced by a system of hierarchy such as domains based on country, state or province, county or prefecture, city or town codes. There will always be two Bill Smiths in most US small towns, however, so we can reduce pressure, but we can never remove it completely. It will come down to who owns the latest lease on the property and what it takes for them to give it up. It is entirely possible, in fact unavoidable, that there will be multiple justified users of virtually any domain name concievable. We can expand the real estate further in virtual worlds than in real ones by use of multiple level domains, but there will eventually come a point where Will Rogers will have been proven right in cyberspace, too; "They're just not making anymore of that stuff!" When that happens, whether it has now, or will in the future after there are tens of thousands of domain groups, we will come back to the same questions and have only the same answer, where were you when it was last available and why didn't you get it them? (i) Should personal names be protected against bad faith, abusive, misleading or unfair registration and use in the DNS? Bad faith and abusive are rather subjective tests of a name holding and intent must be proven. If it is owned for the purpose of speculation, even though it is a sad departure from the founder's concepts for the internet, this is neither "bad faith" or "abusive", but merely either a shrewd or foolishly costly business move, depending on how easily the potentially offended party can adapt with another virtual address. If these terms mean the use of these domains to criticize the entity in question, in so far as it is not slander, this is free speech and should be protected, if not admired. and perhaps might be required to contain a link to the obvious entity to present thier own side to the surprised web-surfer or potential consumer. This would help to do away with some of the misleading effects of holding and using a "brand" name for negative purposes.
All these I understood, but what is "unfair"? Is this the generic term used by people who lost out on a domain name they thought they should have had for those who currently enjoy it? Without significant meaning, it defies meaningful comment or suggestion for change. (ii) Which personal names, if any, should be protected:
- all names,
- names of famous persons,
- names of government officials or other persons in the public eye. If any name is "protected", than all should be! Is my name more important to me than yours is to you? Probably not. Why should any indivdual name be protected (reserved?) for another holder of that name? Someone recently bought a house that my wife and I really thought was perfect for us. Will WIPO help with our arbitration to get this house awarded to us? It really would be perfect for us and we can not afford to pay what the new owners think it is worth! Who will come to my rescue among the property rights advocates? If not, why should you support any one person over another for the right to their name as a domain name? (iii) How do you define bad faith, abusive, misleading or unfair registration and use in respect of personal names? This should be abswered by the WIPO as someone who helped coin such concepts for thier clients. The rest of us can then better define our defenses. (iv) How do you deal with multiple incidences of the same name? Real estate and the market place have an easy answer for this. Once something is out on the market, like a name that has been registered and thus given a "life", it goes to whoever approaches the seller with what the seller recognizes as a worthwhile price to sell it for. If five people want the same unique product, the shrewd owner will raise the estimation of his property's value as long as more than one bidder is available. Of course, there will always be some who simply want to keep what is theirs and who is to say they should have to sell or relinquish it just because there is other interest in it. If you think they should have to, please tell me who will represent us to get the house we so love from the new owners who think they love it more than we do and got it first. (v) What provision, if any, should be made for dispute resolution with respect to disputes on personal names registered as domain names?
(vi) Would directory, listing or other similar services aimed at avoiding domain name conflicts concerning personal names
be useful, and, if so, please describe such services? _____________________________________________________________
Names and acronyms of international intergovernmental organizations, Geographical indications, geographical terms, or indication of source, and Tradenames.
Each of these might well be given an exclusive piece of real estate to sub-divide and have a built in system for disputes before they open and thus at least have fairness, if not make everyone happy. It would require a pecking order to be layed out up front and religiously adhered to. It could then help. Short of this, there is no clear solution available. The question should be, who will make the rules and when? .NGO - Non-Governmental Organizations .GOV - Already exists in one sense, but has room for great international expansion; or add another for outside the US if needed. .GEO - For world geographical sites of note, not to be confused with governmental jurisdiction sites! These are for tourism and promotion. .TM - For trademark holders unable to find the "right" .com, might well be sub-divided into geographic or political jurisdictions. ________________________________________________
C. International Nonproprietary Names (INNs) for Pharmaceutical Substances: Recommendations will be
formulated on whether any protection against abusive registration as a domain name in the gTLDs should be accorded to
INNs and, if so, in what circumstances and how. An "INN" is a specialized, unique name used to identify a pharmaceutical substance or active pharmaceutical ingredient (e.g.,
ampicillin). INNs are selected by the World Health Organization (WHO) in order to promote and protect the safety and health of
patients worldwide, by providing a single, globally available name for each such substance. WHO maintains a list of protected
INNs, now numbering approximately 7500. To qualify, INNs must be distinctive in sound and spelling, so as not to be liable to
confusion with other commonly used names, and must be in the public domain and therefore freely available for this use. List of Issues: The list below is submitted for comment by interested parties as the suggested list of issues to be covered in the study: (i) Should INNs be protected against bad faith, abusive, misleading or unfair registration and use in the DNS?
(ii) How do you define bad faith, abusive, misleading or unfair registration and use in respect of INNs?
(iii) What provision, if any, should be made for dispute resolution with respect to disputes concerning INNs registered as
domain names?
(iv) What provision, if any, should be made for the establishment of exclusions for INNs?
(v) If an exclusion is considered to be useful, how should any exclusion protection take place?
(vi) Would directory, listing or similar other services aimed at avoiding domain name conflicts concerning INNs be useful,
and, if so, please describe such services? D. Names of international intergovernmental organizations: Recommendations will be formulated on whether any
protection against abusive registration as a domain name in the gTLDs should be accorded to the names and acronyms
of international intergovernmental organizations and, if so, in what circumstance Names and acronyms of international intergovernmental organizations are currently protected against use and registration as
trademarks by the Paris Convention for the Protection of Industrial Property (Paris Convention) and through the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). List of Issues: The list below is submitted for comment by interested parties as the suggested list of issues to be covered in the study: (i) Should the names and acronyms of international intergovernmental organizations be protected against bad faith,
abusive, misleading or unfair registration and use in the DNS?
(ii) How do you define bad faith, abusive, misleading or unfair registration and use in respect of the names and acronyms
of international intergovernmental organizations?
(iii) What provision, if any, should be made for dispute resolution with respect to disputes concerning the names and
acronyms of international intergovernmental organizations registered as domain names?
(iv) What provision, if any, should be made for the establishment of exclusions for the names and acronyms of
international intergovernmental organizations?
(v) If an exclusion were considered to be useful, how would any exclusion be implemented?
(vi) Would directory, listing or similar other services aimed at avoiding domain name conflicts concerning the names and
acronyms of international intergovernmental organizations be useful, and, if so, please describe such services?
(vii) Which international intergovernmental organizations should receive any such protection in the DNS (e.g., international
or regional organizations, all organizations that have followed the notification provisions of the Paris Convention)? E. Geographical indications, geographical terms, or indications of source: Recommendations will be formulated on
whether any protection against abusive registration as a domain name in the gTLDs should be accorded to geographical
indications, geographical terms, or indications of source and, if so, in what circumstances and how. Geographical indications, geographical terms, or indications of source (collectively "geographical indications") receive protection
under the Paris Convention, the Madrid Agreement for the Repression of False or Deceptive Indications of Source of Goods
(Madrid Agreement), the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (Lisbon
Agreement) and the TRIPS Agreement. A "geographic indication" is one which identifies a good as originating in a territory, or
region or locality within a territory, where a given quality, reputation or other characteristic of that good is essentially attributable
to its geographic origin. An indication of source is a term that refers to an indication of a geographic place of origin of a product
(e.g., Florida oranges). List of Issues: The list below is submitted for comment by interested parties as the suggested list of issues to be covered in the study: (i) Should geographical indications be protected against bad faith, abusive, misleading or unfair registration and use in the
DNS?
(ii) How do you define bad faith, abusive, misleading or unfair registration and use in respect of geographical indications?
(iii) Which geographical indications, if any, should be so protected (e.g., those receiving protection under the Paris
Convention, Madrid Agreement, Lisbon Agreement, TRIPS Agreement, others)?
(iv) What provision, if any, should be made for dispute resolution with respect to disputes concerning geographical
indications registered as domain names?
(v) What provision, if any, should be made for the establishment of exclusions for geographical indications?
(vi) If an exclusion is considered to be useful, how should any exclusion protection take place?
(vii) Would directory, listing or similar other services aimed at avoiding domain name conflicts concerning geographical
indications be useful, and, if so, please describe such services? F. Tradenames: Recommendations will be formulated on whether any protection against abusive registration as a
domain name in the gTLDs should be accorded to tradenames and, if so, in what circumstances and how. A "tradename" is a name adopted, and often registered, by a business enterprise to distinguish itself, as a commercial entity,
from other enterprises. Unlike trademarks and service marks, tradenames operate to distinguish a business on the basis of its
character, independently of the goods or services that the business offers. Tradenames receive protection under the Paris
Convention (Article 8), without the obligation of a filing or registration. List of Issues: The list below is submitted for comment by interested parties as the suggested list of issues to be covered in the study: (i) Should tradenames be protected against bad faith, abusive, misleading or unfair registration and use in the DNS?
(ii) How do you define which tradenames would be eligible for any such protection?
(iii) How do you define bad faith, abusive, misleading or unfair registration and use in respect of tradenames?
(iv) What provision, if any, should be made for dispute resolution with respect to disputes concerning tradenames
registered as domain names?
(v) Would directory, listing or similar other services aimed at avoiding domain name conflicts concerning tradenames be
useful, and, if so, please describe such services?
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