SUMMARY OF COMMENTS
RECEIVED ON
REQUEST FOR COMMENTS ON TERMS OF REFERENCE,
PROCEDURES AND TIMETABLE FOR THE
SECOND WIPO INTERNET DOMAIN NAME PROCESS
(WIPO2 RFC-1)
Introductory Remarks
1. This document provides a summary of the comments received on the Request for Comments on Terms of Reference, Procedures and Timetable for the Second WIPO Internet Domain Name Process (WIPO2 RFC-1).
2. WIPO2 RFC-1 was published on July 10, 2000, and marked the formal commencement of the Second WIPO Internet Domain Name Process. It sought comments from all interested parties on the proper scope of the Second WIPO Process, including the issues to be addressed therein, as well as on the suggested procedures and timetable for the Process. Commentators were requested not to address the substance of the issues described in the terms of reference, but to address only whether the issues mentioned were appropriate for the Process, whether they were adequately described, and whether any further issues should be included.
3. By September 15, 2000, the date of the deadline for comments, WIPO had received 187 comments on WIPO2 RFC-1, which were submitted by a sectorally and geographically diverse range of participants. Following the deadline, an additional 17 comments were submitted, bringing the total comments to 203, as follows:
- States - 6
- International intergovernmental organizations 4
- Non-governmental organizations 13
- Corporations, Professional Firms and Universities 78
- Individuals 102 1
4. All comments received have been posted online, and a listing is provided in the Annex, attached hereto 2.
Proposed Terms of Reference
5. WIPO2 RFC-1 proposed that the Second WIPO Process explore, and develop findings and recommendations in relation to, issues raised in the domain name system (DNS), inter alia, by bad faith, abusive, misleading or unfair use of:
- personal names,
- International Nonproprietary Names (INNs) for pharmaceutical substances,
- names and acronyms of international intergovernmental organizations,
- geographical indications, geographical terms, or indications of source, and
- tradenames.
6. The Request for Comments proposed a separate list of issues for comment for each of these areas, based on the nature of the rights or interests involved in each.
7. It was proposed that the Second Process also investigate the availability of any technical solutions that might serve to reduce the tension between domain names and other protected rights. In addition, interested parties were invited to submit comments on whether there are any further areas to those listed above, relating to the interface between intellectual property and cognate rights and the DNS, which it would be appropriate to include in the study and consultation.
Summary of Comments
A. Comments Regarding the Merits of the Issues
8. WIPO2 RFC-1 requested interested parties "not to address the substance of the issues described in the terms of reference at this stage, but to address only whether issues mentioned are appropriate for the Process, whether they are adequately described, and whether any further issues should be included." Nonetheless, numerous comments that were submitted concern only the merits of the issues raised in the terms of reference. Indeed, some of these comments address themselves to issues that were the subject of the first WIPO Domain Name Process. In view of the purpose of WIPO2 RFC-1 that is, defining the terms of reference, procedures and timetable comments falling into this category will not be discussed in detail in this summary. Such comments will be given full consideration at a later stage in the Process, along with the comments submitted on WIPO2 RFC-2, which lists for substantive comment the finalized issues to be addressed in the Second WIPO Process.
B. Comments on the Uniform Domain Name Dispute Resolution Policy (UDRP)
9. Similarly, many commentators have used the comment procedure for WIPO2 RFC-1 as a forum to express their views on ICANNs Uniform Domain Name Dispute Resolution Policy (UDRP) and the decisions arrived at thereunder. While virtually all commentators who addressed this subject express their condemnation of cybersquatting, a number of them respond in light of several highly publicized decisions in which a determination was made to transfer a domain name from the domain name registrant to a complainant asserting trademark rights (e.g., crew.com, barcelona.com). These commentators view the Second WIPO Process as leading to a possible extension in the scope of the UDRP, and in this context, urge that the UDRP and its decisions should first be assessed and better understood before consideration is given to broadening its scope to encompass disputes involving any new rights.
10. The Second WIPO Process is not intended to be a forum for the assessment of the UDRP and the determinations that have been reached under this Policy. These issues are beyond the scope of the Second Process, and while many commentators refer to the UDRP or its decisions, there is no significant call among the commentators that these issues should be included in the consultations of the Second Process. However, the comments on the UDRP will be taken into account, to the extent that they reflect a view that caution should be exercised, and further consideration given to the UDRP, before recommending any measures that would affect the scope of the UDRP as it currently applies to the ".com," ".net" and ".org" gTLDs.
C. Comments Send Cautionary Message
11. An underlying concern is reflected in a significant number of the comments submitted in response to WIPO2 RFC-1. While many of the commentators, particularly individuals and non-commercial entities, fail to address the scope of the issues proposed (or the suggested procedures or timetable), they do express a more generalized view that the Second WIPO Process not move forward too quickly to consider questions involving the protection of rights and interests beyond those of trademarks rights, which were addressed in the first WIPO Process.
12. In this respect, such commentators question whether the Second WIPO Process will provide opportunity to consider fairly the interests of individuals and small businesses, and non-commercial interests such as free speech. They highlight concern not only with the possible expansion in the areas of rights that would receive protection in the DNS, but also about potential inequities in the implementation of any new measures of protection. These commentators suggest that the introduction of any new forms of protection in the DNS could have a destabilizing effect, since domain name holders, who rely integrally on their registered domain names in their commercial or non-commercial plans, might face unforeseen challenges and disputes. At the extreme, a few commentators urge that it is too late to introduce new rules and the Second WIPO Process thus should be suspended.
13. Other comments reflect a certain level of confusion, reading WIPO2 RFC-1 (with its list of issues to be addressed) as a document that would pre-judge the outcome of the consultations that will take during the Second WIPO Process. Similarly, some commentators have read WIPO2 RFC-1, as noted above, as a template that only relates to, and would result in a broadening of, the scope of the UDRP.
14. Still other commentators have requested that the Second WIPO Process extend its scope to consider new areas or issues in addition to those listed in the first Request for Comments, such as providing guidance on how States may implement and harmonize new anticybersquatting legislation. Finally, a number of commentators suggest any assessment of the issues to be addressed in the Second Process should take proper account of new developments in the evolving DNS, including the possible introduction of new gTLDs which ICANN is considering.
15. All of the above comments will be taken into account during the ongoing consultations of the Second WIPO Process. The Second WIPO Process will be conducted in a balanced and transparent manner, with the aim of achieving consensus among all stakeholders of the Internet on the issues concerned. WIPO recognizes the need to provide sufficient opportunity for all interested parties to consider adequately and respond to the issues to be addressed by the Second Process. The Process is thus contemplated to extend over the next ten months, so that a thorough and comprehensive assessment can be made of the issues to be addressed, without moving too quickly to arrive at any results. Further, as WIPO2 RFC-1 has noted, the nature of the rights and interests involved in each of the areas of the study are quite different, and therefore might lead to different findings, conclusions and recommendations. The possibility of a recommendation of no action in respect of an issue is naturally not excluded.
D. Comments Regarding the Terms of Reference
16. It should be noted, in light of the discussion of the comments above, that a number of commentators have suggested that, for each relevant area of inquiry, the finalized terms of reference should request express comment on a number of additional issues, as follows:
i. provide information and evidence on the types and extent of any problems and abuses in the DNS related to each substantive area;
ii. whether existing legal protection under national law, or under the existing UDRP, is capable of resolving any of the problems or abuses noted in the particular area;
iii. the degree of uniformity of the law for the rights concerned in the substantive area;
iv. whether any suggested measures of protection in each area should be considered only in relation to the nature and type of domain name space established by each gTLD (cf., wipo.int and wipo.com);
v. whether any suggested measures of protection should be considered only for voluntary implementation at the level of country domains (ccTLDs), in keeping with relevant national law;
vi. whether and how any new measures of protection might affect existing domain name registrants; and
vii. what should be considered optimal policy from the perspective of the development of the Internet as a medium for communication and electronic commerce.
17. A number of these suggested items have been incorporated, where relevant, into the detailed list of issues in the finalized terms of reference in WIPO2 RFC-2. A review of the comments making suggestions for each particular area of inquiry is set forth below.
Personal Names
18. Many of the comments on WIPO2 RFC-1 addressed the subject of personal names. Most of these comments, however, expressed views either on the merits of the issues listed in the Request (e.g., whether or not to restrict any form of protection to the names of famous persons) or on several of the decisions handed down under the UDRP in which a celebritys personal name was contested (e.g., jimihendrix.com, juliaroberts.com).
19. Several commentators indicate that a threshold question in this area is the proper definition of what constitutes a personal name, or the classes of names to be considered for receiving any protection. Other commentators suggest that a distinction between living and deceased persons should be raised for comment. Several comments indicate that consideration should be given to the relationship between any contemplated protection and any existing protection under national law or the UDRP. Others suggest that comment should be sought on whether sufficient harmonization exists under national law with respect to personality rights to justify any uniform measures of protection in the gTLDs.
International Nonproprietary Names (INNs) for Pharmaceutical Substances
20. The comments received in this area of inquiry for the most part expressed substantive views on the issues, rather than commenting on the scope of the issues listed or suggesting any changes to them. One comment, from the World Health Organization, proposes changes intended to clarify the description provided in the RFC of an INN, as well as noting certain industry practice and suggesting minor amendments to the list of issues for comment. Another comment suggests that consideration should be given to whether protection of INNs should occur only in relation to the nature of the particular TLD that is to be considered.
Geographical Indications, Indications of Source or Geographical Terms:
21. Similar to the response on personal names, most of the comments on geographical indications, indications of source or geographical terms express views on the merits of the issues listed in the Request. These views will be given full consideration when the comments on WIPO2 RFC-2 are reviewed. A number of commentators suggest, in particular, that views should be sought on whether any measures of protection for geographical indications should considered only for voluntary adoption at the level of country domains (ccTLDs), in keeping with relevant national law. Another comment indicates that consideration should be given to who should have standing to challenge the registration of a geographical indication as a domain name, and which geographical indications should be entitled to any protection.
Tradenames
22. Virtually all of the comments discussing tradenames focus on the substance of the issues listed for this area of inquiry. These comments will be given due consideration during the later stages of the Second Process. The finalized list of issues will therefore be amended only to reflect a number of the relevant general items discussed in paragraph 17 above.
Technical Solutions for Domain Name Collision Control
23. The several comments that addressed this element of WIPO2 RFC-1 request that additional comments be sought, in particular, on whether new technical means are available for enhancing the DNS on-line WHOIS services, which provide contact information (e.g., name, address, telephone number and email) for domain name registrants. These comments indicate that further study should be given to the availability of a searchable database that would operate on a variety of platforms and be compatible with all relevant DNS registration authorities, particularly as the introduction of new gTLDs is being considered by ICANN. One comment suggested that consideration should be given to establishing a worldwide directory of registered trademarks.
Comments on the Proposed Procedures and Timetable
24. As noted above, a number of commentators suggest that the Second WIPO Process should not move forward too quickly to consider questions involving the protection of rights and interests beyond those of trademarks rights, which were addressed in the first WIPO Process. Some of these comments were made in light of a reaction to certain publicized decisions under the UDRP, and a related concern that that Policy may need review before any measures of protection for other rights should be considered. Other comments indicate that given the complexity of the issues addressed in the Second WIPO Process, the Process should proceed in a manner and according to a timetable that will allow for a thorough assessment of the issues by all relevant parties, without moving too quickly to arrive at any results.
25. Several commentators reinforce that the regional consultations should be organized so as to facilitate wide geographic and sectoral participation by all interested parties. Two comments indicate that a panel of experts should be established to assist WIPO in this study, similar to the panel that was constituted during the first WIPO Process.
26. As noted above, the Second WIPO Process is planned to extend over the next ten months, so that a thorough and comprehensive assessment can be made of the issues to be addressed. The amended timetable for the Process is now set forth in the WIPO2 RFC-2. As the Process progresses, WIPO will consider, in light of the consulations, comments and any relevant developments, whether it would be advisable to further adjust the timetable for the Process.
27. The organization of the regional consulations -- to obtain further input on the issues addressed in the Second Process -- will be arranged with the goal of allowing maixmum participation of all interested parties on a worldwide basis. It is planned that the core of these meetings will be scheduled during the period of February through May 2001, following publication of the interim report (WIPO2 RFC-3), so that interested parties will be able to use such consulations to respond to the preliminary and proposed findings, conclusions and recommendations, which will be developed on the basis of the comments on WIPO2 RFC-1 and WIPO2 RFC-2. The planned venues and dates for these meetings will be posted on WIPOs web site as such arrangements are settled.
28. Finally, WIPO has considered that it would not be advisable to constitute a panel of experts for the Second WIPO Process. The request from WIPOs Member States to undertake a further study on outstanding issues of domain names and intellectual property indicated that this work should be performed under the Organizations current program and budget, whereas the expenses associated with the expert panel for the first WIPO Process were very significant (approximately $250,000) and viewed as an exceptional and reasonable expenditure in light of the urgency of the issues in that Process and the novelty of the approach taken to address them. WIPO will consult closely with relevant organizations and entities, such as the World Health Organization, ICANN and organizations whose constituencies reflect the concerns of domain name registrants, to obtain the important input and expertise that will assist in considering carefully all of the issues -- particularly in relation to any specialized topics -- to be addressed during the Second WIPO Process.
Footnotes:
1. In some instances, email submissions did not include the name of the individual or organization submitting the comment, and the only available identification information is the email address from which the comment originated.
2. It should be noted that some 489 individuals and organizations to-date have also subscribed to become members of the WIPO unmoderated listserver discussion forum. On some occasions, individuals or organizations have confused the formal comment process with the listserver discussions and have sent comments on WIPO2 RFC-1 to the listserver address (process2@listbox.wipo.int), instead of to the comments address (process.mail@wipo.int). WIPO is making reasonable efforts to re-direct such comments to the proper address. While the listserver discussion forum is intended to encourage discussion and debate on relevant issues, comments that interested parties wish to submit on the RFCs should be made through the formal comment process.