To: process.mail@wipo.int
From: "NIC Chile"
Subject: A general viewpoint on the Interim Report of the Second WIPO Process
Date: May 05, 2001
A general viewpoint on the
Interim Report of the Second WIPO Process
Patricio Poblete Administrative Contact
Margarita Valdes Legal Advisor
NIC Chile Buenos Aires, May 10, 2001
About NIC Chile
- NIC Chile started operating as a ccTLD Registry in 1987. Currently around 70,000 domain names registered.
- Our domain name dispute resolution policy was introduced in 1997, two years ahead of the UDRP , and it is based on mediation and arbitration.
- Principles of our dispute resolution policy:
1. The system never operates ex officio, a complaint is always required
2. No a priori controls
3. Complaint may be based on bad faith registration of a trademark, or of a name by which the complainant is known
The mandate for the Second WIPO Process
- "...the development of recommendations on means of dealing with the bad faith, abusive, misleading or unfair use of:
- personal names;
- International Nonproprietary Names (INNs) for pharmaceutical substances; .names of international intergovernmental organizations;
- geographical indications, geographical terms or indications of source; and
- trade names."
- Judging whether a violation exists requires evaluating how the name is being used. Therefore, we think that establishing a priori exclusions goes beyond the bounds of the mandate.
Purpose of use is essential
- The Interim Report recommends that "measures be adopted to protect geographical indications and indications of source in the open gTLDs".
- "geographical indications are a sub-category of [indications of source] used with respect to products where the product originates in a territory, or region or locality within a territory, and where a given quality, other characteristic or reputation of that product is attributable to its geographic origin (for example, 'champagne')."
- It is not uncommon for such names to be used in good faith and without damage to the reputation of these products in other contexts. In Chile, for example, the domain name "champagne.cl" is used to identify the web page of a TV show called "Champagne".
- Similar examples may be found for most of the classes of identifiers analized in the Second Process.
The lack of sufficient reason for unconditional protections
- Most identifiers considered have a very narrow scope of use (e.g. pharmaceutical products). The fact that they are reserved for a specific purpose within that scope does not warrant reserving them in the DNS, which is a global space.
- Even for INNs, there may be, say, a rock band using an INN as its name, and consumers would certainly be able to tell distinguish one from the other.
- Even for INNs the "bad faith" or "abusive" use can only determined a posteriori.
- From this point of view, it seems that the Interim Report fails to prove the case for excluding INNs. From saying "[w]hile evidence of actual damage resulting from the registration and use of INNs as domain names is lacking, it is clear that a number of INNs have been registered... " it goes on to recommend that "INNs should be protected against registration as domain names".
The precedent of "famous marks" from the First WIPO Process
- WIPO already recommended that an exclusion system be introduced for gTLDs to protect famous marks
- After much discussion within the Internet community, ICANN did not follow this recommendation, and no exclusion system exists today in gTLDs for these marks
- It is likely that similar recommendations for other classes of identifiers will suffer a similar fate.