[process2-comments] RFC-3

To: process.mail@wipo.int
From: CentralNic
Subject: RFC-3
Date: 25th May 2001

Mr Francis Gurry
Assistant Director General
World Intellectual Property Organization Office of Legal and Organization Affairs
34, chemin des Colombettes
P.O. Box 18 1211
Geneva 20
Switzerland

25th May 2001

 

Dear Mr Gurry ,

Geographical Domain Names. -WIPO 2000 Process

Following our discussion at your Brussels meeting I am writing about the applicability of the WIPO UDRP to registrants of CentralNic domains.

Before addressing this issue however I would like to provide you with some history and facts that I hope will help to explain the position of Centra1Nic in the Domain Name field. As a Registry we "fall between the cracks" of ccTLD and GTLD registries and outside the normal jurisdiction of ICANN. I also recognise that there are a number of private registries whose behaviour and business practices are not up to a good standard.

CentralNic has always attempted to uphold good practices in the Registry business. Many major companies will attest to you our support and helpfulness in disputes relating to trademark infringement and cybersquatting. Our record of never having been sued in over six years of operating as a registry attests to this.

Your report lists potential areas of abuse that could arise from our position, and to be fair it also makes the point that such abuse is not taking place. It does not however highlight the benefits that can arise from us providing choice in many countries.

In the UK we started trading six months before Nominet UK. At that time it was proposed that domains under co.uk would cost £200 UK (approximately 320 Euros) each. I believed this to be an abuse of monopoly power and I consulted the late Jon Postel. It was he who suggested that I should set up uk.com as an alternative registry. I did so, pricing uk.com at £65 UK. When Nominet UK started trading, co.uk was priced at £l00 UK and quickly dropped to £80 UK. This story illustrates that competition can be good and beneficial to users and registrants.

There are also many countries, even in Europe where ccTLD managers (who are not always Government controlled) apply restrictive and capricious controls and exorbitant pricing to domain names. The provision of a good alternative choice backed by a company such as Centra1Nic, which has a good reputation and an enviably long trading record in the Internet arena, is a useful service to Internet users.

I would welcome some recognition of the good we can bring as well as the largely theoretical potential abuses that are mentioned in your report.

The primary reason for this letter relates to the UDRP and its applicability to CentralNic's registrants. In your report you have made the following recommendation:

"1. With regard to the use of the ISO 3166 code elements in the currently existing gTLDs, we do not express any opinion on the question of whether use should be forbidden retroactively. However, the persons or entities who have registered these codes and accept registrations of names under them should be encouraged to take measures to render the UDRP applicable to these registrations and to ensure the proper and prompt implementation of decisions transferring or canceling the registrations resultingfrom the UDRP."

As the chairman of CentralNic I would like to confirm to you our agreement in principle to the adoption of your UDRP. There are a number of issues that we would like to discuss:

The first is one that I believe my colleagues at Nominet UK (of which I am also a director) have also brought up with WIPO. Both Nominet UK and CentralNic have traditionally used informal mediation in the dispute arena. To date this has resolved around 80% of cases, saving all concerned considerable legal costs and enhancing our reputations. The UDRP provides no opportunity for such informal mediation. I would wish to offer this possibility as a phase that disputants can choose to go through prior to entering the UDRP. I hope that ultimately WIPO will adopt this as an integral part of your DRP.

The second is the question of retrospective application. We can re-word our terms and conditions to bind future registrants to a DRP but I am doubtful about, and indeed uncomfortable with applying such a major change retrospectively. I would prefer to offer the UDRP to all our current registrants and change their contracts to make it mandatory on renewal - a two-yearly process at present.

The third is more in the way of a proposal. As you may know CentraINic has a strong interest in the legal issues surrounding the ownership of Domain Names. Cathy Horton, our Legal Director gave a presentation at RIPE 38 of a legal platform for giving registrants a stronger and more reliable grasp and control over their domain names. One of the problems faced by the intellectual property community is that they may hold a trademark or brand name in multiple jurisdictions and are forced to fight cybersquatting cases in several jurisdictions (cybersquatting is much more effective if the perpetrator holds a "set" of domains - com, net, org, co.uk, uk.com, and so on).

It is our view that UDRP would be very much more effective if it could apply to all gTLD's and ccTLD's and private registries. We would strongly support the development of such a universal procedure that gathered together the "best" of the various dispute resolution systems. This is an activity which WIPO and CENTR could jointly undertake. The acceptance of such a universal policy could be written into the long-awaited ICANN-ccTLD contracts.

I would be happy to discuss these matters with you in the spirit of wishing to place Centra1Nic in harmony with WIPO's excellent initiative to regulate a somewhat turbulent area.

Yours sincerely,

Stephen Dyer

Chairman
CentralNic