[process2-comments] Response to RFC-1 WIPO Second Domain Name Process

 Response to RFC-1 WIPO Second Domain Name Process To begin with, let us all remember the purpose of the DNS - to provide a mnemonic locator for numerical (IP) addresses in order to point to a location of a website or e-mail address. Any other use of the name is superfluous. It is the commercial sector which has created a litigation nightmare and embroiled the millions of individual domain name holders in fight after fight, as well as a general fear of insecurity in use of the internet. Cases such as Corinthians, traditions, crew, Barcelona, tonsil, and one of the first and most egregious - eresolution are not merely unjust, but unlawful. UDRP was never intended to supercede local and national law, yet it does every day. WIPO has set up a system for ICANN whereby the hindsight of corporations has become de facto rights to reverse-hijack legitimately owned domain names from their registrants. There are some true cybersquatters who have lost names and I know of no one who would object to those rulings. However, the term "cybersquatter" has been perverted, along with the law, to include resellers, parody, criticism, legitimate use (i.e., fan sites), e-mail only, and non use (holding). At the same time, corporations have not been cited or punished for doing the same thing (Procter and Gamble, among others). In addition, the system has fostered a situation whereby the arbitrators pander to the corporations based on track record. The fact that the complainant chooses the arbitrator of his choice and pays that arbitrator, is sufficient reason to invalidate the entire process. Arbitrators have had clear bias and have shown a total lack of understanding of the very cases they are deciding - Corinthians, Barcelona... The arbitrator for the eresolution case stated one of the reasons for transfer was that the newly formed company could make better use of the name! Since Eresolution is an arbitrator itself, the case was immediately suspect, especially since it was not even in existence when the name was registered, and was not even in the same country. ICANN does not even post information when a case is taken to court after an arbitration decision, making it seem that all decisions are correct and that they all stand. It is not true, but the public does not know that. I sincerely hope that this latest WIPO attempt to monopolize the world's names will fail miserably. If it should succeed in adding the following into UDRP rules, it will create havoc and result in more class action suits than any company would wish to contemplate. I could hardly believe what I read in the RFC, that it would expand its power to include: Personal names; International Nonproprietary Names (INNs) for Pharmaceutical Substances; Names of international intergovernmental organizations; Geographical indications, geographical terms, or indications of source; and Trade names. In all cases, there is governing law, especially in the US to cover these cases. It is bad enough that ICANN/WIPO has misused the law and the term "cybersquatting" to reverse-hijack domain names where trademarks are concerned. To expand this quasi-law is detrimental to the growth of the internet and its use by millions of people all over the world. It was never meant to belong to the commercial sector, but it seems that this body would make it so. GREED is NOT good. In the long run, it won't work. Personal names: If my last name happens to be DuPont (which it was) and I choose to use my name as a domain name for a small business (which I did at one time), I cannot imagine the chemical company attempting to blackmail me into giving it up as so many companies have done to small businesses. If a fan of a famous person puts up a fan site to glorify that person and the famous person reverse-hijacks that domain name, it seems obvious that what was a fan site may turn into an anti-fan site - even under a different name. It has already happened in more than one case. Why would a famous person want to lose fans? It certainly shows a different side of that famous person's personality and attitude towards fans. The gTLD's - .com .net and .org - are open to all registrations. Thus the term generic or global TLD. There are many reasons for an individual or business to use a famous name which would not infringe on that person's place in the world. There are many legitimate uses of a famous name for parody, fair use, free speech, criticism... There are also many commercial names in the net/org TLD's and many non-commercial names in the .com TLD. This is no reason to claim bad faith. To go after personal or famous names is wrong. In the cases I have read, it seems that the hindsight of the famous person in not registering the name is the basis for this reverse hijacking. This seems to be true in a great many of the UDRP cases with TM names. Companies who had decided the internet was not viable for business suddenly reversed that opinion and found that others had registered those names. Now the UDRP comes along and steals the names because it is cheap and easy with no recourse for the victim. International Nonproprietary Names (INNs) for Pharmaceutical Substances: This is just about the most ridiculous thing I have ever heard of. Drug stores sell hydrocodone. It is a highly addictive drug. If a website is devoted to hydrocodone, who is WIPO to say it cannot do so via its name. Ampicillin is also a topic for discussion, especially for those who are allergic to penicillin. It is my opinion that there should be many websites devoted to generic drugs, their names, their side effects, studies, etc. To protect the names is to protect the manufacturers against any criticism and wanted/needed information to the public. In addition, there are sites which may be able to provide generics at a greatly reduced price. This is a truly beneficial service to those who cannot afford the inflated prices in the general marketplace - young families, seniors... This is true for any generic drug. The fact that the substance has a GENERIC name is sufficient to be able to use the name generically. How can that possibly translate into a protected name? Baffling. Names of international intergovernmental organizations: In most cases, it would seem clear that governmental organizations would have distinctive names and automatically known world wide. It would also seem clear that those organizations would have registered their names in the major gTLD's already. If they have not, it is obvious they do not wish to, or are now suffering the frustrations of hindsight and greed. Additionally, governmental organizations have their own TLD (.gov) and it should be utilized for that purpose. I see no reason for all countries to use that TLD for its organizations. Acronyms, on the other hand, can be used for a myriad of names and should not be protected. Example: vw transferred to Volkswagen when the registrant's company was Virtual Works, a perfectly legitimate use of the acronym. The same logic should apply to any acronym, if the content of the website is non-infringing. Again, governmental organizations should use the .gov TLD. Geographical indications, geographical terms, or indications of source: This is almost comical. Why should Bordeaux be protected for a domain name? There is the region, a color, many towns, streets, personal names, objects... using the name Bordeaux. The same can be said for almost any indication, term or indication of source. The DNS is a mnemonic locator, which requires it to be unique. There is no way these areas can be protected. In addition names like "Yellowstone" which is a national park in the US and known world wide is used in many business names, parodies, books, other writings and descriptions. Most "famous" geographical names will have the same similarities in use. I read that one intention would be to protect "Florida Oranges" from being used by someone who imported fruit to be sold in another area. So? If the person is selling Florida oranges, he's selling Florida oranges and maybe Bing cherries and Washington apples and Idaho potatoes. An importer of German beer or a specialty store which sells German beer should be able to use the name German beer, as should a person who is writing a story on German beer, or, for that matter, an enthusiast of German beer. There is an easy solution. Adopt a .GEO for regions. As one news person said, "Gimme a break." Trade names: This one is the best of all. Having lived in several states in the US and traveled to several other countries, I am no longer surprised to see the same so-called "trade name" in abundant use for different purposes. Most have never heard of one another, even though they are well known in their own areas. My own business name (acronym) has been used in hundreds of other businesses. Were I to complain about each instance, I'm sure I could make it a full time effort. Search engines come up with thousands of instances of the use of that acronym. It will be very interesting to see how ICANN/WIPO would handle thousands of class action suits on this one. I would guess that most of the participants on this list would be parties to such suits, and probably multiple suits. Attorneys are going to have a hey day if ICANN adopts such a rule in any form. As a matter of fact, they will have a windfall if ANY of the proposed subjects become a part of the UDRP. If nothing else it will force the emergence of many more competing root server systems - a good idea, actually. The UDRP would be irrelevant in that case - also a good idea. The internet would revert to its purpose - the information highway - open communications for the world, with appropriate individual freedoms - a very good thing. As one list participant said in an earlier post: "Prior to expanding this process to include the proposed categories, I call for an independant audit of the to-date rulings to judge if this process has indeed been succesful." I think we know the answer. For big businesss, yes. For the majority of domain name holders, NO! Overall - NO. Sincerely, Leah Gallegos Founder TLDlobby