[process2-comments] RFC-1

 Name: Mick Maher Organization: UK WebPages.Com Position: Founder I would make the following points. Main thought:- I think your proposals are a poorly thought out reaction to genuine problems. There are better solutions. These might take slightly longer to implement but will leave you clear of cricticism and potential legal action. 1. Your interpretation of "bad faith" is far too harsh. As a result of this you have failed to distinguish clearly between cybersquatters and cyberspeculators. This has caused your proposals to have major flaws and could leave you open to serious legal action. Cybesquatting and cyberspeculation are two completely different things. Cybersquatting involves registering established names with a view to extracting money from the established names or trading on their fame. Cyberspeculation involves seeing the potential in a name which others have not seen. Two things can then happen. (i) The person registering the name can set up a site hoping to make money or just for the sheer fun of it. (ii) The names could be offered for sale later to organisations which have decided these names are suitable for their purposes. I would stress that their is nothing wrong with this. People are using "intellectual property" to make money. The original registrant thinks he/she has seen potential in a name before anybody else has. He/she then registers the name. If they are right they stand to make money. If they are wrong then they have lost money. To show the rightness of this matter one only has to look at the resale market place for domain names. Even Network Solutions - the original and then only registrar - has a department which is re-selling names for people who have registered them. It is extremely unfair to allow latecomers easy access to these names as your organisation seems to be doing. You are, after all, the World Intellectual Property Organisation. You should be defending the intellectual property rights of the original registrants instead of trampling over them. At the moment you seem to be acting as a tool for big business and not as the World Intellectual Property Organisation. Eventually aggrieved parties will sue you - either individually or by means of a class action. I am sure there are many lawyers now ready to launch such an action a "no-win, no-fee" or contingency fee basis. Your organisation will have to pay out untold sums in damages in various countries throughout the world if these proposals are implemented and then acted upon in ways similar to the crew.com, jt.com and barcelona.com decisions. 2. You are proposing to change the rules in a retrospective fashion. Many domain name holders registered domain names in what was regarded as "good faith" until your harsh re-interpretaion. Your proposals go against all the tenets of natural justice and so should be opposed by every right-minded person. In terms of dotcom geographic names, for example, these have always been allowed. Dotcom is for commercial use. Your barcelona.com decision is a very bad one. If Barcelona city wish to have a web-site they should be forced to use barcelona.gov.es as for example UK and Australian cities do. Every city/location uses .gov.uk. For example, manchester.gov.uk. A similar situsation exists in Australia eg. canberra.gov.au. Barcelona should be made to use barcelona.gov.es. If it is necessary to use .gov without the further es suffix then barcelonaspain.gov could be used to distinguish this barcelona from any other such as barcelonachile.gov for example. If your decision is allowed to stand will amazon.com be forced to give up their domain name? The govenments along the Amazon basin in South America could claim to have an equally valid right to this name as has Barcelona to barcelona.com. However, I am sure you would not even dare to try to take amazon.com away from Jeff Bezos. So your position can now be seen to be extremely weak. The barcelona.com decision is one of the worst and most legally indefensible which has ever been made. A note is useful here. Australia refuses to allow geographic locations to be registered as commercial domain names. They had the foresight to anticipate that problems would arise. They use, for example, canberra.gov.au for goverment sites. Barcelona and other geographic locations should be made to do something similar. If the registration of geographic locations in the dotcom area had not been originally allowed as in the Australian example, then the situation would be very different. They were, however, allowed. So, the rules should not now be changed to suit the demands of powerful entities who have come to the game late and are now trying to pirate such domain names from the original owners. The dotcom versions should be left with their original registrants who recognised the potential in such intellectual property. 3. Trademark infringements This is the thorniest area. "Bad faith" seems obvious in some registrations. For example the recent yahoo type names were obviously registered in the cybersquatter fashion. This was a deliberate attempt to use an established and famous trademark/trade name to make money in one way or another. "Bad faith" is not so obvious in many other areas. Many trademarks/trade names which are very similar to each other are used in different countries by different organisation. Who can truly say which organisation has the legal right to these names on the global scale which is the Internet? 3. Personal names This is another thorny area. Again, some famous names seem obvious. However ordinary people share famous names and could feel aggrieved if their name is taken from them. Perhaps the solution lies in creating a new suffix e.g. .per - short for personal name or .perf - short for perfomer or .pol short for politician etc. Equity, the actors union in the U.K., keeps a register of names. Before anybody "new" can be registered they have to find a name which is not already being used. A similar situation could happen here. 4. WIPO's framework is legally very shaky. Although you claim to be the World Intellectual Property Organisation and to have a remit over the whole world your position might not be recognised on an individual country basis. In addition you do not even have an appeals process. Nor do you have a legal aid system to help those who do not have access to business or govenrment finance. This means that the rich and poweful can efectively buy decisions because we are not all competeing on a level legal playing field. These factors militate against all forms of natural justice. They should be remedied immediately if WIPO is not to lose every shred of credibility. Conclusion:- Please think carefully before any further decisions are made. Enough people are already aggrieved by your decisions. Legal action will be taken against WIPO eventually. You may also find "hackers and crackers" start to take other forms of action. I sincerely hope not but DOS action, for example, has been taken by the Internet community when injustices have prevailed as in th eto.com/etoys.com dispute. This sort of action only harms the internet but is the type of thing which happens when people feel so badly treated without adequate forms of re-dress. Mick Maher mickmaher@ukwebpages.com