[process2-comments] RFC-3

To: process.mail@wipo.int
From: "World Health Organization"
Subject: RFC-3
Date: Thu, 7 Jun 2001

Dear Dear Mr Gurry,

Re: Request for comments on the Interim Report of the Second WIPO Internet Domain Name Process.

Thank you for sending us a copy of the abovementioned Interim Report, dated 12 April 2001. The World Health Organization (WHO) should like to comment on this Report, in so far as it relates to:

• International Nonproprietary Names (INNs); and

• the names and acronyms of international intergovernmental organizations.

International Nonproprietary Names

WHO agrees with most of the considerations included in the Report, in particular insofar as they relate to: (i) the exclusion of the registration of domain names which are identical to an INN, and (ii) the fact that the registration of an INN together with another word, such as "info" or "usergroup" may serve an important informational role and should, as such, in principle be allowed. This being said, as further explained below, WHO should like to recommend that interested parties are given the opportunity to challenge the following registrations through dispute resolution:

• domain names which are derived from an INN or include established INN stems (regardless whether such names are used alone or in combination with another word, such as "info" or "usergroup"); and
• domain names which combine exact INNs with another word, in the event such domain names are misleading or otherwise in bad faith.

For a better understanding of this position, WHO should like to provide some further clarification of the INN system, its purpose and application.

INNs are used within the health sector as a system whereby WHO recommends unique, globally available names, free from proprietary rights and available for use by all, for the sole purpose of identifying pharmaceutical substances. This system has mainly been established to provide health professionals with a clear identification mechanism for the safe prescription and dispensing of medicines to patients, and for unambiguous communication and exchange of information among health professionals and scientists worldwide.

Proposed and recommended INNs were formerly published in the WHO Chronicle, but are now included in the publication "WHO Drug Information". In addition, the Cumulative List of recommended INNs is disseminated by WHO in electronic form in seven (and not, as noted in paragraph 59, in only 5 languages): Latin, English, French, Russian, Spanish, Arabic and Chinese.

The global recognition of INNs, and the exclusive use for their intended purpose, ensures that no confusion can arise about drugs, their pharmacological activity and properties, in international prescription and dispensing practices. To further curtail the risk of confusion (which, for obvious reasons, could jeopardize the safety of patients), trademarks cannot be derived from, or be confusingly similar to, INNs. WHO is of the opinion that the same should apply to Internet domain names, i.e. because: (i) the acquisition of such domain names creates rights which are akin to exclusive proprietary rights (in that the use of a domain name within a specific gTLD on the Internet and the content of the space occupied by that domain name are exclusively controlled by the domain name holder), and because (ii) the aforesaid space may be used for more than the mere identification of the pharmaceutical substance to which the INN relates. As a result, the registration and use of INNs as domain names carries the risk of confusing health professionals and consumers alike.

WHO should like to point out that the policy of WHO Member States to discourage the acquisition of proprietary rights in INNs, is primarily based on resolutions adopted by the World Health Assembly (currently comprising 191 Member States). Resolution WHA 46.19 requests WHO’s Member States to not only discourage the use of exact INNs as trademarks, but also names which are derived from INNs or include established INN stems (recognizing that such use "may compromise the safety of patients by creating confusion in prescribing and dispensing medicines and by interfering with the orderly development of the nomenclature for international nonproprietary names"). As a result of this resolution, this policy is now being applied by national trademark offices throughout the world.

In WHO’s opinion, the currently best way in which measures to prevent misuse of INNs on the Internet could be implemented in a timely manner and throughout the entire DNS, would be for the recommendations emanating from this Process to be adopted as a global policy by ICANN.

Since the registration of an INN as a domain name allows the holder to exclusively control the space occupied by this domain name, such registration carries the inherent risk of confusion (i.e. not only in terms of the veracity and reliability of any information relating to the pharmaceutical substance for which the INN has been selected, but also because the space covered by the domain name may easily include information which goes beyond, or is unrelated to, the mere identification of the pharmaceutical substance in question). In WHO’s opinion, this may easily result in:

Ultimately, this may result in a possible failure of health practitioners to recognize the exact pharmacological activity or properties of certain pharmaceutical substances, and put patients to whom such substances are prescribed, at risk.

The same considerations apply, in WHO’s opinion, to domain names which are:

1. derived from an INN or include established INN stems (i.e. are confusingly similar to an INN), regardless of whether such names are used alone or with another word, and regardless of whether or not there is any deliberate attempt to mislead consumers; and
2. the combination of an exact INN with another word, eg "[INN]. info", in the event such domain names are misleading or otherwise in bad faith, i.e. are not strictly limited to the provision of information relating to the pharmaceutical substance for which the INN has been selected, but are for example used for advertising or promotional purposes or for matters of a private nature.

As mentioned above, WHO agrees with the recommendation in the Report that domain names that are identical to an INN should be prohibited and blocked (together with the cancellation of any such domain names which are currently in existence). WHO also agrees that a such prohibition and blocking mechanism could not efficiently be implemented for domain names as described in points (a) and (b) above. Such domain names should, however, be open to challenge by interested parties, eg manufacturers, consumers and health practitioners, through an extension of the UDRP.

WHO does not see for what reason an exercise of judgement in regard of domain names which are confusingly similar to INNs (i.e. are derived from INNs or include established INN stems) could not take place under a modified UDRP. In fact, national trademark offices are already exercising judgement in that respect in the registration of trademarks. It would seem, therefore, that a similar exercise of judgement could take place within the scope of the UDRP.

In connection with the above, WHO feels that the only remedy under the UDRP should be cancellation of the domain name. Contrary to what is stated in paragraph 15 of the Report, WHO does not agree that this possibility should be rejected merely because such a cancellation would "resuscitate the availability of the INN for registration by some other party". Should this be the case, and should such renewed use be misleading or otherwise in bad faith, interested parties would again have the possibility to seek recourse to dispute resolution.

Turning now to the question as to whether the recommendations enimating from this Process should apply to all gTLDS, WHO agrees that in closed gTLDS (such as ". edu", ". gov" or ". int"), there is arguably less risk of misuse of INNs in the domain name registration process.

WHO does not, however, feel that the "nature of the conditions to be imposed with respect to closed gTLDS [are by themselves] a sufficient safeguard"against the misuse of INNs. To WHO’s understanding, closed gTLDs do not, currently, necessarily include control mechanisms which are of such a nature as to automatically preclude such misuse. As a result, WHO is of the opinion that the protection of INNs and corresponding recommendations should apply to all gTLDS, regardless of whether they are open or closed.

For the purpose of dispute resolution and WHO’s proposed extension of the UDRP, WHO does not agree that "there does not appear to be any appropriate entity to file a complaint against INNs" (see paragraph 74). Whilst it is correct that WHO cannot assume the administrative and financial burden of prosecuting all complaints against registrations such as those referred to under points (a) and (b) above, interested parties include inter alia consumer groups, individual manufacturers or manufacturers associations, and medical societies.

In light of the above, WHO should, in regard of INNs, like to propose the consideration of the recommendations contained in Appendix 1 attached to this letter.

Names of International Intergovernmental Organizations

WHO largely concurs with the considerations and recommendations made in the Report in the regard of the names of international intergovernment organizations (IGOs). In general, there would not, in WHO’s opinion, seem to be any legitimate reason for a third party to register and use an IGO’s name, without the permission of the IGO in question. In line herewith, WHO feels that the names of IGOs should be excluded from registration in the DNS by a third party, in that all existing registrations should be cancelled and future registrations should be blocked. This should apply, regardless of whether the name is used alone or in combination with another word. Concerning the abusive use and registration of the acronyms of IGO’s, or of names that are confusingly similar to the names of IGOs, WHO agrees that an administrative procedure (allowing IGOs to submit a complaint to a specially constituted administrative panel of experts), should - in light of IGOs’ traditional immunity from jurisdiction - indeed be preferred to dispute resolution through the UDRP. In addition, WHO should like to make the following comments:

Thus, WHO should, in regard of the names and acronyms of international intergovernmental organizations, like to propose the consideration of the recommendations contained in Appendix 2 attached to this letter.

Thank you for your consideration of the above. WHO remains at your disposal the provide you with any additional information or clarification you may require.

Yours sincerely,

T.S.R. Topping
Legal Counsel

Appendix1.doc
Appendix 2.doc