[process2-comments] WIPO RFC-1

 Continuando la comunicación remitida el pasado día 15, le hago llegar l a traducción al inglés de mis comentarios sobre el WIPO2 RFC. Luis H. de Larramendi COMMENTS ON THE SECOND WIPO INTERNET DOMAIN NAME PROCESS 1.- Considering the content of the aspects to be taken into account in relation to the five areas on which comments are requested, it would appear that the five areas may be consolidated into two because of the uniform treatment they may receive. These two areas would be: - Personal Names and Trade Names, and - INNs, intergovernmental organizations, geographical indications, etc. 2.- A second consideration that must be made in relation to the concepts of bad faith, abusive, misleading and unfair registration, and the use of any of the five areas must take into account two aspects that must be separated: The considerations in that respect would be: A) - Consider all registrations that infringe one of the five categories to be abusive registrations in bad faith or incorrect as well as those where the applicant is unable to evidence a legitimate right justifying his application for registration. B) - That there should be no requirement of use in bad faith, abusive, confusing or somehow incorrect use when those circumstances already exist on the registry--and particularly with respect to personal names and trade name--because: - it should be possible to prevent the acquisition in bad faith or the abusive acquisition of a domain name registration that prevents the legitimate owner from acquiring it for himself (in the case of personal names, trade names, names of international organizations or geographical names) or that reproduces an INN; and - that possible abusive use, use in bad faith, etc. would fall beyond th e jurisdiction of the DNS system as it would probably be the subject of a tort or civil wrong for unfair competition, libel, etc. which should be settled through other channels. 3.- Another consideration is that protection of these areas must be through a system: - that is simple, does not impose bureaucracy on applicants for domain names, and eliminates conflicts to the greatest extent possible; and - that serves for adoption by all first level domain name administrators, whether territorial or generic, in a simple manner. 4.- This would only be possible if WIPO maintained a database of potentially unregistrable names along with its database of domain names. Its possibilities or characteristics could be: - Voluntary registration in the database of owners of personal names, aliases, trade names, etc. - Compulsory registration of INNs, intergovernmental organizations and their acronyms. The applicant for a domain name in one of the top level domains associated with the system would be asked on the electronic form whether he had checked the domain name of interest to him with that database and a link would be established to enable him to do so at that time if need be. He would then be asked: - whether an identical name was listed in the database and - if an identical name was listed, whether he nonetheless wished to register the domain name because he considered he had a legitimate right to the name. In this way, numerous conflicts affecting these categories would be prevented and, at the same time, there would be an opportunity to harmonize the treatment of these matters for all top level domains if not only the generic domains joined the system but also many territorial domains. 5.- WIPO would be in charge of managing the database, establishing the access conditions and the conditions for challenging the listing of a particular name in a manner similar to that initially foreseen in the WIPO1 report for famous trademarks. Naturally, the fact that a name was not included on the list would not mean that cancellation of the equivalent domain name could not be petitioned by means of a system equivalent to the arbitration system for conflicts between trademarks and domain names. 6.- Another consideration, following from the previous ones, is that an arbitration system should exist to settle conflicts arising from the registration as domain names of names falling within the protected categories. Such a system would in principle have characteristics similar to those of the arbitration proceedings for settling conflicts between trademarks and domain names. 7.- Turning to the different categories considered, our comments are as follows: PERSONAL NAMES - Because of the difficulty in defining famous persons; the following names should be protected: - All personal names, including the aliases, nicknames, artistic names, etc. by which certain persons are known publicly. The system should operate when a third party adopts an equivalent domain name in bad faith, in an abusive manner, seeking to create confusion, etc. For the many cases of homonyms in good faith, a system of a gateway page and sub-pages of the same name should be established, if it is technically possible to do so. INNS - INNs must be protected in accordance with the characteristics already considered in a general manner at the beginning of this contribution. NAMES OF INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS: idem. GEOGRAPHICAL INDICATIONS: idem. TRADE NAMES: Considerations similar to those for personal names. 8.- These comments are of an initial nature and are therefore subject to further development as the process advances. Luis H. de Larramendi ELZABURU Spain __________________________________________________________ ELZABURU * Agentes de la P.I. y Abogados Intellectual Property Atts. & Lawyers * Miguel Angel, 21 28010 MADRID ESPAÑA / SPAIN * Tel.: (34) 91 700 9400 Fax: (34) 91 319 3810 e-mail: elzaburu@elzaburu.es http://www.elzaburu.es