[process2-comments] RFC-2
| To: | <process2@listbox.wipo.int> | |
| Subject: | [process2-comments] RFC-2 | |
| From: | Russian Agency for Patents and Trademarks (Rospatent) | |
| Date: | January 19, 2001 |
RUSSIAN AGENCY FOR PATENTS AND TRADEMARKS Dear Mr. IDRIS, Referring to the circular C.INT 41 of November 13, 2000 we are forwarding comments of this Office on Issues Addressed in the Second WIPO Internet Domain Name Process (WIPO2 RFC-2). Sincerely yours, Alexander D.Korchagin
COMMENTS Regarding Issues Personal Names A relevant law of the Russian Federation contains the following provisions concerning the use of personal names. A name serves as a means for individualization of a person. Any citizen acquires and exercises rights and obligations under his personal name which includes his family name, first name and patronymic (which is derived from the fathers name), unless otherwise prescribed by the law or follows from a national custom In the cases provided by the law a citizen may use a fictitious name i.e. pseudonym. It is presumed that a pseudonym chosen by an author should be protected from abusive use by other persons on the same footing as a name of a citizen. The right to be identified by personal name constitutes a part of moral rights which are recognized and protected under civil law . Defence of the right belongs to the competence of the courts, including courts of general jurisdiction and courts of arbitration. Acquisition of rights and obligations under a falsely assumed name shall not be allowed by the law. Damages that have been caused to a person through an unlawful use of his name should be compensated for. Where moral damage has been caused, the court may order the infringer to pay monetary compensation to the injured party. Therefore, an unlawful use of a personal name shall be deemed, under the Russian law, to constitute its use for the purpose of acquiring civil rights and obligations which use resulted in material and/or moral damages to the person whose name has been unlawfully used. Through an unlawful use of another person' s name the infringer may acquire certain material and moral benefits. An Internet domain name likewise serves as a means for individualization of a domain name registrant. Accordingly; one may conclude that an unlawful use of another persons name as a domain name may be recognized as an infringement of the person's right to be identified by name. Based on the above assumptions below you will find comments regarding certain issues raised in the Request for Comments. 20.1 Personal names should be granted protection from the abusive registration as domain names. 20.2 A personal name should be construed as either solely family name, or as a family name plus first name, or family name plus first name and patronymic (according to the practice existing in Russia). In certain cases protection may be granted to names consisting solely of a first name (without any family name being specified). This applies to first names which in our conscience are inseparably related to a particular person. For example, in Russia the name Elvis primarily evokes an association with the greatest rock-star of XX century the legendary Elvis Presley. A pseudonym may be granted protection on the same grounds. 20.3 Protection should be granted for names of well-known persons. Well-known persons should be primarily construed as distinguished artists and scientists as well as other prominent figures of human activity who have become the brightlight of historical and cultural heritage of a country. Prominent politicians should also be construed as well-known persons. A person shall be presumed well-known if his name is included in reference books, encyclopaedia, dictionaries and is widely used by massmedia, in radio-and television broadcasts. It is presumed that by analogy with names of authors copyrighted works, names of deceased well-known persons shpuld be protected under copyright laws. The right to defend the authors name should belong to his heirs. 20.4 The definition of "the abusive registration" of the Internet domain name involving a personal name may be formulated on the basis of the definition of the abousive registration of an Internet domain name involving a trademark as contained in paragraph 171 of the WIPO Report "The Management of Internet Names and Addresses Intellectual Property Issues (Final WIPO Report on Internet Domain Names). It is worth mentioning that unlike a trademark which is used purely for commercial purposes, the right to be identified by name is basically a moral right Despite the fact that commercial value of a certain name may be immense, the definition of "badfaith" should include certain aspects reflecting the nature of the right to be identified by name. 20.5 Where there are several persons claiming the right to similar or identical names, there exist several variants to resolve their dispute. Firstly, the right to an Internet domain name should be based on priority , that is first come -first served. The right to an Internet domain name in such case shall belong to the first applicant Secondly, all persons having equal right to an Internet domain name may be invited to share the administration of a common domain on the basis of mutually agreed terms and conditions. Thirdly, confusing similarity may be avoided through the use of modem technical means such as gateways. 20.6 Dispute resolution policy concerning the use of personal names as Internet domain names may be developed by analogy with dispute resolution policy (UDRP) concerning abusive registration of Internet domain names applied to trademarks (See Annex IV, WIPO Report "The Management of Internet Names and Addresses. Intellectual Property Issues") One of the remedies in order to defend civil rights in this context may be reinstatement of the legal status that existed before the infringement has taken place and repression of any infringing acts or acts liable to cause an infringement. It is presumed that this legislative norm should be applied in cases where the right to be identified by name is infringed by using another person's name in an Internet domain name. That means that a person whose right to be identified by name has been infringed may, upon a decision taken by an administrative authority competent to examine disputes arising from the infringement of a personal name, request the cancellation of the abusive registration or transfer of the right to a relevant registration to him. 20.7 Sometimes it is difficult to establish a relationship between the use of a personal name that belongs to a citizen of a given country and the territory of that country where the personal name (or an identical sign which is associated with the personal name) is used in an Internet domain name by another person. Accordingly, the national legislation of that country may appear to be inapplicable for the defense of the right to be identified by name. As regards UDRP , its competence may extend to gTLD but not to all national top level domains. 20.8 Given the aforementioned, it is not only necessary to undertake to define the term "abusive registration" of domain name involving personal names but also to develop a uniform administrative dispute resolution procedure with regard to the use of personal names as domain names (similar to UDRP) and try to introduce the procedure in ccTLD.
International Nonproprietary Names (INNs)
Proceeding from the assumption that INNs basic function consists in identification of 8 pharmaceutical substances for purposes of safety and health protection of patients allover the world, it might be expedient to provide protection of INNs against the abusive registration as domain names. The definition of the abusive registration may be based, for example, on the absence of authorization by the World Health Organization required in order to use relevant INNs. Disputes arising from the use of domain names affecting INNs may be referred to the competence of UDRP.
Names of International Intergovernmental Organizations Although the names of international intergovernmental organizations are protected only against their use and registration as trademarks, it is presumed that such protection may be extended to cover their registration as domain names. The defnition of the abusive registration may, for example, be based on the absence of authorization by the international intergovernmental organization concerned required in order to use its name or any abbreviation (including acronym) by person. Disputes arising from the use of domain names affecting the names of international intergovernmental organizations may be referred to the competence of UDRP. It is also necessary to point out that, given a limited number of international intergovernmental organizations, control over the use of their names in domain names may be assigned to a concerned registrant in Internet. A relevant provision may be included in a license contract concluded with the registrant and in the regulations governing registration of domain names in allocated space. A list of official names of international intergovernmental organizations intended for the purposes of control over their use in domain names may be established and transmitted to ICANN which grants licenses to registrants of top level domains.
Geographical Indications, Geographical
The appellation of origin shall enjoy legal protection in the Russian Federation on the basis of registration effeted in accordance with the provisions of relevant law. An appellation of origin shall be constituted by name of a country , locality, region or other geographical area that serves to designate a product whose particular properties are determined exclusively or essentially by natural factors, human factors or both natural and human factors characteristic of the geographical area in question. The right to use the appellation of origin registered according to the established procedure may be granted to any person, whether a natural person or legal entity , who is located in the same geographical area and manufactures a product having the same properties. The use of a registered appellation of origin capabJe to mislead consumers as to the origin of a product and its particular properties shall not be allowed. It is presumed that the above criterion may be applied to determination whether a registration of an appellation of origin of a product as a domain name is abusive or not. Since the right to use an appellation of origin may belong to several persons, it is presumed that any dispute between them relating to the said right may be resolved by analogy with dispute resolution between bona fide owners of a trademark registration.
Trade Names Considering that protection for trade names is granted without registration in all member States of the Paris Union, it is presumed that a similar protection against the abusive registration should be granted to trade names intended for registration as Internet domain names. The definition of the abusive registration of a domain name involving a trade name may be entirely based on the definition of the abusive registration of domain names involving trademarks as contained in paragraph 171 of the WIPO Report "The Management of Internet Domain Names and Addresses: Intellectual Property Issues " (Final WIPO Report on Internet Domain Names). Dispute resolution policy with regard to the use of trade names as Internet domain names may be elaborated by analogy with dispute resolution policy (UDRP) with regard to the abusive registration of domain names as applied to trademarks. |