[process2-comments] RFC-1

 Name: Barbara Simons Organization: ACM Internet Governance Project Position: Acting Director The ACM Internet Governance Project is troubled by the timing and the proposed procedure of the Second WIPO Internet Domain Name Process set out in the RFC-1. As a number of the comments submitted to WIPO point out, the implementation of the UDRP has revealed several significant problems. In the nine months of the UDRP experiment, it has become clear that there is enormous demand for an expeditious domain name dispute resolution process. It has also become clear that there are bugs in the current design. ICANN intended to limit the UDRP so that it resolved only egregious cases of bad faith registration and use, rather than disputes in which both the complainant and the registration had legitimate interests in the domain name. The policy, however, has been invoked to transfer or cancel domain name registrations in cases where evidence of bad faith registration or use was absent, and in cases in which both parties had apparently legitimate claims to the domain name. A number of commentators have drawn WIPO@s attention to UDRP decisions that appear greatly to exceed the narrow substantive scope of the UDRP. In addition, there are problems with the perceived legitimacy of the UDRP process. News media in several different nations have reported that particular dispute-resolution service providers are widely perceived to be much more likely to order a domain name transfer than other providers, and that that perception appears to have resulted in an increased market share for complainant-friendly providers. That perception has undermined the legitimacy of the UDRP. Exacerbating this problem is the understandable tendency of trademark owners, seeking to persuade legitimate domain name registrants to transfer desired domain names, to characterize the UDRP as an all purpose tool permitting trademark owners to take domain names that might dilute their trademarks away from the people who have registered them. The ACM Internet Governance Project strongly believes that before we consider significant expansion of the UDRP@s application, we need to identify the reasons for these substantial problems and implement the changes necessary to correct them. This is especially important given the fact that some of the most significant problems appear to have derived at least in part from the differences among national trademark laws. National laws on protection of personal names, names of organizations, geographical terms, and tradenames diverge far more than national trademark laws. If the UDRP has not yet been able to respond appropriately to differences in trademark law, its expansion to areas where national laws reflect more fundamental differences seems likely to fail. We are also concerned that the procedures proposed in RFC-1 paragraphs 8 through 11 for the Second WIPO Internet Domain Name Process omit a number of the important aspects that increased the balance, transparency, and legitimacy of the First WIPO Internet Domain Name Process. There is no proposal for an outside committee of experts, like the one that assisted WIPO in the earlier process. There are fewer regional consultations scheduled, and their locations are relatively inaccessible. Without safeguards to encourage participation by a wide and diverse group of interests, we believe that there is significant danger that the Second WIPO Internet Domain Name Process will be perceived as a WIPO power grab by those stakeholders who believe that they have been excluded or ignored. Jessica Litman Barbara Simons