Transcript: Brussels regional consultation

Centre Albert Borschette (CCAB)
February 17, 1999

19 January22 January2 February10 February17 February10 March
Toronto, Canada Singapore Rio de Janeiro, Brazil Dakar, Senegal Brussels, Belgium Washington, DC, USA

Mr. Francis Gurry, Chairperson, Legal Counsel, Electronic Commerce Section, Office of Legal and Organization Affairs.
Good morning, my name is Francis Gurry from WIPO. Thank you all very much for coming this morning to the consultation. Let me start by saying that English and French simultaneous interpretation is available if you would like to use the earphones. And let me thank the European Commission, and in particular DG XV for its cooperation throughout the whole of this Process and for making available this splendid facility for us this morning for today's consultations. I would like to thank the European Commission not only for the physical facility, but also to the Commission and to its Member States for the support that it has given consistently to WIPO in respect of this Internet Domain Name Process, both, in according to WIPO a role in respect of the interface between trademarks and intellectual property rights and domain names, and its input at each stage in the Process which has always been extremely constructive and helpful to us. If I may, I would like to introduce my colleagues who are sitting with me on my left and right. Let me start with those members of the WIPO Expert Panel that we have convened for this Process. If I may take them from the left, my left that is, we have first of all Dr. Ousmane Kane who is the Executive Director of the African Regional Centre for Technology, which is located in Dakar in Senegal. Dr. Kane is a national of Senegal and he organized a very successful hearing that we held in Senegal just last week. It was the most recent one we had before today. Seated next to Dr. Kane is Professor Michael Froomkin who is a Professor at the Miami School of Law. Professor Froomkin is a very active contributor to our Process, and in particular he wanted me to mention this morning that he has done a personal critique of WIPO's Request for Comments 3 or its Interim Report which is available for those of you who would like to consult it on the following website, it's http://www.law.miami.edu. I think that is sufficient to get there isn't it? Well, /~imf to get you right to the updated version of the document. Professor Froomkin is coming in particular, although it is certainly not his only perspective, but in particular from the perspective of the protection of privacy. Seated next to Professor Froomkin is Mr. Philip Sbarbaro who is the Chief Litigation Counsel for Network Solutions Inc. NSI, and in that capacity of course has probably more experience in relation to domain name litigation than anyone else on the globe probably. Next to Phil Sbarbaro is Mr. Boudewijn Nederkoorn who is former Chairman of the RIPE CENTR, but still a very active participant in the CENTR's activities. Finishing with the experts if I may, two away from me is Mr. Mark Partridge who is a member of the Board of Directors of the American Intellectual Property Law Association. Let me move then from the experts to introduce my immediate colleagues from WIPO. On my right is Mr. David Muls, who works with me in the Office of Legal Organization Affairs in WIPO and in particular in the Electronic Commerce Section in that Office and who has been an active participant of course in this process from outside. And on the far right, my far right is Mr. (Leethan Shock ?) who is formerly of the Federal Ministry of Justice in Germany. That from the Federal Ministry of Justice we have temporarily stolen him in order to assist us on various questions including this one at WIPO. If I may move from my colleagues then to the European Commission. Unfortunately, Mr. Eric Nooteboom who will be known to many of you who is the Head of Unit in DG XV of the European Commission, who was here some ten minutes ago but then has been urgently called away, is replaced by his colleague Ms. Marianne Gumælius who is seated next to David Muls two from my right and who will be saying a few words on behalf of the Commission in one moment. We also have Mr. Victor (Sayes ?) from DG XV who is seated second from the far right, and also is involved in this area. Let me welcome additionally from the Coalition Christopher Wilkinson. I am not sure whether Christopher is still with us, he also was here and has been called away and will be coming back in the course of the day. And I think Christopher is known to many of you from DG XIII in the European Commission. And finally, in terms of introductions we have the pleasure and the privilege of having Mr. Frank Fritz Simons here, who is a member of the Interim Board of the Internet Corporation for Assigned Names and Numbers, ICANN. And Frank is seated just further here and we very much welcome his presence and of course the interest of ICANN in our Process.

Ladies and gentlemen, I won't spend much time on introducing the Process. I am sure that most of you are very familiar with it, if not over familiar with it and a little battle fatigued by the whole question of domain names and the interface between domain names and intellectual property rights. As you know we are now in the final stage of the Process. We started with the first request for comments last August which was on the terms of reference for this process and that was followed by a second Request For Comments which became available in the month of September on the issues that had so been defined in the terms of reference. And just before Christmas, we published on December 23 the Interim Report of the Process which is now being made available in terms of a third Request For Comments. And it is this Interim Report which will be the subject of today's consultations. As far as the procedure for today is concerned, in one moment as I mentioned Marianne Gumælius from the Commission will say a few words. Thereafter, we would like those of you who have as it were a formal submission, but please don't place too much emphasis on the word formal. But those of you who would like to address the issues in the Interim Report from the point of view of a as it were previously considered position, we would invite each of you to make your submission and after those submissions have been concluded we would propose if time permits and I think it will, to then go through the report or the main recommendations of the report as it were and invite any spontaneous comments on any of the issues and discussion on any of the issues. May I ask, so that we can just record it, if those of you who have a submission that you would like to make in the first part of the meeting could

please identify yourselves now so as that we may have an idea.

(Ms. ............................): (Comment is inaudible).

(Mr. Francis Gurry): Thank you very much. Are there any others who will be making as it were a formal or semi-formal submission? Keith Gymer is it? I am afraid I left my glasses in Geneva, so I am a little handicapped in identifying people from a distance. Keith Gymer. Are there any others? Yes please. Are there others? That is it. Okay, fine. If anyone would like to add themselves to that list for this stage of the proceedings, then they are most welcome to let us know. And otherwise we will then proceed to an informal discussion. In the course of the discussion if I may ask each of you in making comment to identify himself or herself for the purposes of the record as we will make available on our website, both a transcript of today's hearings and an audio tape of the consultations. So, with that may I pass the floor to Marianne Gumælius from the Commission please.

(Ms. Marianne Gumælius, Principal Administrator, European Commission, DG XV E2): Thank you Mr. Gurry. On behalf of the Commission I would warmly welcome the initiative taken by WIPO to arrange for this conference. And as Mr. Gurry just said, the Commission gives its strong support to this initiative taken by WIPO in this whole Process. The Interim Report has been discussed recently within the framework of the Council of the Working Group and it is absolutely clear that generally speaking it is a strong or a very positive approach to the Report and the proposals made in the report from WIPO's side. I have some general comments to make on the Report. As mentioned on several occasions, the Community and its Member States could agree to attach great importance to the principle that intellectual property rights are fully respected irrespective of the technological environment. It is also very important that consumers have confidence in electronic transactions and they should be able to rely on established brand identities, trademarks, trade names, and also of course to be absolutely sure of the original and the quality of products. The Commission supports the approach taken by WIPO by focusing on measures aiming to avoid conflicts rather than resolving them. It is also considered important that there is international consistency in the dispute resolution mechanism for all generic TLDs. This does not necessarily mean that the mechanisms need to be administrated by a single entity, but it is important that the same standards and procedures are applied by the various bodies that could be responsible for running them. It is also important to keep the administrative dispute resolution procedure quick and cheap. And therefore it is considered important not to have a possibility to appeal other than the usual making the dispute a case in front of a national court. The ADR service should have reasonable and uniform fees. It is also important to elaborate the procedure for registration of the domain name order in order to minimize the risk of conflicts. However, these procedures should not be burdened with unnecessary information. It is important to have a system for the providing of personal data to third party, that takes the interest of privacy into account. So, it is essential to protect famous and well-known marks from infringement by domain name holders and all measures within the WIPO document are therefore supported. However, it is important that the Community and its Member States to emphasize that other trademarks should not be forgotten in this Process. To what extent trademarks that are not famous or well-known that would need protection should be considered at a later occasion. The Community and its Member States share the view expressed in the WIPO document that it would be useful to further elaborate the question of differentiation of the TLD name space as means of accommodating both the protection of IPR and the expansion of the DSLs. And finally, in the first instance the creation of new generic TLDs dedicated to personal public service or non-commercial communications would permit the expansion of the Internet in that direction without prejudicing trademark interests. And secondly, the rationalization of the existing generic TLD registers should be a high priority. Some short words from my part.

(Mr. Francis Gurry): Thank you very much Marianne. So, ladies and gentlemen if I may suggest let us move to hear the three submissions and Ms. Fay Howard from the CENTR may I ask, or would you like to go a little bit later? Okay, fine. Keith Gymer are you ready to give us your wisdom? Or Philip Sheppard? Okay, Philip Sheppard from AIM.

(Mr. Philip Sheppard, Branding Affairs Manager, AIM European Brands Association): Last time I spoke to the WIPO consultation process in Brussels, I stressed the need something very important to my organization AIM, the European Brands Association. And that something was trust. Trust that is by the consumer in the brands they buy from brand manufacturers. And I am very pleased to see that the WIPO Process I think is moving rapidly to help sustain that trust as consumers move from conventional channels of trade or start to buy via electronic commerce. For example, there will be more trust if the WIPO proposals would eventually lead to preventing cyberpiracy are taken up. There would be more trust if the WIPO proposals would lead to the consumers more easily finding the website they want are taken up. And in general there would be more trust if consumers know that someone has analyzed the problem and proposed solutions. That someone is WIPO, and we believe on balance the solutions they propose are good. RFC-3 are small comments on new top-level domains and the position that they might think along with lots of industry is very simple. Firstly, there should be no new top-level domain names before the adoption of a dispute resolution process such as the one we are discussing today. And in this regard, the ICANN Board said in their Brussels hearing in this very building, that they expect to see domain name proposals to the DNSO to contain dispute resolution proposals as well. And we are quite comforted by that. Secondly, we believe along with the Commissioner I have just heard, new names should be differentiated in a directory style system. In other words not .com and .firm, but eventually .airlines and .books, along indeed with a possibility for personal gTLDs. But I believe if we look beyond the Process today, the real task ahead for WIPO is to rapidly complete this Process and then get by into it from the DNSO and from the ICANN Board to the final recommendations. Because, without that buy-in, the intelligent analysis and the good solutions we see before us will be wasted. And that buy-in I think is no means certain. As anyone who will be able to ship into the WIPO DNS e-mail list will know, there are many voices out there who seemed to view the Internet simply as a channel of communication, and we forget the need that we will have to trust whom we use the Internet as a channel of trade. That, by and by, the ICANN Board will be achieved I think by skillful communication from WIPO, and especially by supporting communication from the groups here today which endorse the Process. I believe we have the product, we have the means of trust and what we now need to do is to ensure its adoption within the governance structure of the Internet. Thank you very much.

(Mr. Francis Gurry): Thank you very much Philip Sheppard. I would invite anyone present to make any observations on the presentation that was just made or to address any questions that you would like to Mr. Sheppard. Is there anyone wishing to make any comments at this stage? No, fine. Then Keith Gymer are you now ready to, fine. Keith was formerly as many of you know with BT, British Telecom and he is now with the firm of Page Hargrave as an intellectual property adviser. Keith you have the floor.

(Keith Gymer, Trademark and Patent Attorney, Page Hargrave): Thank you Francis. My involvement in the Internet domain name issue has been quite extensive over the last couple of years and I am also as well as consultant to BT, a participant in the International Chamber of Commerce Task Force on Internet Domain Name Issues and a member of the International Trademark Association Internet Sub-Committee. And I intend to speak today from a provisional comments on the RFC-3 that the ICC Group has put together. I emphasize that at this stage we are still in the process of consultation within the membership and so anything I say here is provisional and not final. But I shall try to indicate where there is a large degree of consensus, although there are a number of areas where there are different views on what the solutions are and how the proposals in the WIPO document should be supported. The INTA is also going through its consultation process and I shan't be speaking for them at this stage. They have their position will be come clearer later. I like if I may, I don't know given that there aren't too many other speakers, perhaps I can take some time to go in some details through the comments on the RFC, although I shall try not to send everyone to sleep.

The WIPO RFC deals with the four principle issues and I will take them in order. The principles for trying to minimize the potential of conflict, dispute resolution when conflict arises, the protection of famous marks and the proposals for addition of new gTLDs and new TLDs. I will start with the first issue of minimizing domain name conflict. As most of the participants probably know the ICC did produce last year its own set of principles for an electronic commerce friendly domain name system in July last year. And one of the key things that we had in there was that we were looking to support the development of a domain name system which had sufficient flexibility to allow different legitimate claimants to the same mark, name or sign to exploit that as a domain name, whilst ensuring adequate means to differentiate between them. And I think that really takes up on the issue that Philip mentioned there of differentiation and appropriate structure. I will come back to that further later on. Going now to the RFC-3 in particular, we certainly very much welcome the efforts made by WIPO in this very comprehensive Report and it is clear that the Panel of Experts have had a very thoughtful and comprehensive discussions which have resulted in this very detailed report which asks a lot of very pertinent questions and makes very good recommendations in general. We certainly summarize our support that we support recommendations requiring accurate information in the domain name registration, recommendations that the registration agreement contain appropriate provisions on jurisdiction. Some sort of system whereby at least the registry is assured that payments are made for every domain name that is requested. This would not preclude I don't think registrars if they wished and I know some people have raised concern on this, offering free registrations for their customers. But it would impose an obligation on the registrars to pay the registries and therefore there might be some incentive on registrars to at least be exercising some care when they were giving away free domains or cheap domains. Limited registration periods. The process for renewal that is recommended I think has a lot to commend it for getting rid of deadwood. And policies for providing for special consideration and potential exclusion to an appropriate degree for famous marks which are the most commonly subject to piracy and abuse in the experience of our members.

Turning now perhaps specifically to the various recommendations. I don't know if relying on everyone having the paragraphs of the RFC-3, because our reference will be to the paragraphs in the RFC. I will try and refer specifically to the paragraphs that I am covering here. The initial recommendations at the beginning of the chapter two in paragraphs 46 and 50 relate to the formation of contractual relationships and provision of accurate details subjected to appropriate recognition of electronic contracts. We certainly support this area of proposals. It appears from a commercial perspective no reason to our members why a domain name applicant should not be required to provide the same sort of information as would be routinely required in any trademark registry around the world to be provided by applicants for registration of a trademark and certainly at least in any domains used for commercial purposes. On that point, recommendation 51 enquires whether it be desirable to allow a domain name holder to remain anonymous. Certainly the general view in ICC and INTA as far as I am aware is that it would be very undesirable to allow anonymity in any, certainly in respect of any commercially use domain and we feel that there must be further consideration given where there is a perceived need for anonymity perhaps in some areas of political free speech then no doubt there can be umbrella organizations which can operate and allow that without requiring anonymity at the level of registration of the domain name in the first place. But that is one which what we feel certainly strongly about in the commercial area there shouldn't be. As to the access of some of the ............ provisions 55, recommend registration an agreement contains restrictions on the use of domain name information. This has become a hot issue lately in view of the changes that NSI itself has implemented in the information currently provided on the whois database. And cause of significant concern to our members. We certainly again believe that the information needs to be readily available in the same way as details on the owners of trademark registrations are readily available. But then obviously it is legitimate to expect there to be restrictions to prevent wholesale use of that data for purposes not connected with the domain name registrations such as for junk mailing and such like. And obviously there would need to be provisions and controls put in place to prevent that sort of abuse.

In paragraph I think 55 there is a suggestion that the details should only be available where there is an allegation of infringement and that specifically would be very much against. Because in many cases the access to the information would be required to clarify whether there wasn't an infringement and it would certainly be contrary and would be a risk on the U.K. law for example to make allegations of infringement when you have no proof that there was any infringement. And therefore, we would strongly object to any requirement that you have to make a threat of infringement before you had access to information which would enable you actually to make a reasoned decision on that basis.

Recommendation 59 relates to submission to jurisdiction. And the ICC has certainly previously recommended that jurisdictional options should be preserved and jurisdictional choices shouldn't be restricted to the advantage or disadvantages of parties in any one country relative to those of any other country. There are I think however a number of issues which would be difficult to sort out in there because even if a contractual provision was made between a registrar or registry or a registrar and a registrant that wouldn't bind third party disputants in general anyway. Except where the third party disputant then attempted to seek a remedy under an administrative or contractual system. And from another perspective the issue of having different contractual jurisdictional provisions applying to the parties to a contract could be problematic for businesses involved in contracting with registrants or the registrars or the registries themselves if they find that their contracts are going to be interpreted by the laws of every different jurisdiction of their customers. And this is a problem that the European Union itself of course is facing in the area of e-commerce generally, which provisions apply to consumer contracts. And that is one where we feel further attention is going to be required. There are a number of provisions where a number of recommendations in the WIPO paper which talk about the provision of inaccurate or false information. And again our members are strongly supportive of the view that there must be some penalty for provision of inaccurate information. Although, obviously one would anticipate that any registrant would have an opportunity to correct any information which is alleged to be incorrect before any ultimate sanction was imposed because certainly it is our own experience looking at even NSI who is, that a lot of the data on legitimate registrants is not accurate and no longer up-to-date. But that is nonetheless a desirable objective that it should be. There should be some sort of incentive for it to be kept up-to-date. And to the extent that verification of details is possible and certainly there are already electronic authentication systems which registries use for their own registrars in many countries already where they have regular relationships. And to the extent that those could be extended generally, I think that option needs to be considered.

I have already touched on the recommendation that a domain name at the registry level certainly shouldn't be activated unless the registry is assured of payment for it. Some of the difficulties for example which NSI seems to have had with mass registration requests by serial cybersquatters would have been perhaps alleviated if the cybersquatters had been obliged to make non-refundable payments before those names were delegated. The ICC is still considering other recommendations in this area. We certainly believe that name registrant details should be published promptly and there should be provision for an appropriate rapid challenge by those who believe their rights may have been infringed by that delegation, that registration. We agree that searches of trademark, process of trademarks is probably impractical to have them compulsory, but it would be useful, as WIPO said, to recommend this if only to dispel the notion which seems to be prevalent among certain quarters that a first-come first-served policy in delegation of domain names somehow gives domain name registrants a priority over the rights of others who have been using the name in the real world beforehand and have trademark registrations and other rights already.

As I said before ................. of recommendation 88 certainly strongly support the view that a searchable database must be available and that access should be open to all, there mustn't be a filter on that. And specifically that there should be no automatic notice to registrants of enquiries regarding domain names. That, we don't see that as necessary. On the final recommendation, 106 in that section of the Report where WIPO recommends that portals and gateway page solutions shouldn't be compulsory, our members would certainly agree with that. We don't believe that it would be universally appropriate to have such solutions but we recognize that there is a potential in some circumstances that they could be helpful and useful.

Moving on to chapter three, which is the comments on dispute resolution procedures. And I hear that there have been some concerns expressed in some quarters about whether in fact recommendation 105 would actually be affective in all jurisdictions and that seems to me something that is obviously going to need further consideration. But the principle that parties should be free to use the courts is one which our members support. 119 again deals with the issue of jurisdiction. In principle certainly it appears that the proposal is a fair minimum requirement. Though as I have mentioned before, we see that there may be problems for the registration authorities and registrars with contractual arrangements with customers in different jurisdictions. And this is an area in which I think the ICC is giving further consideration because both in the interest of those who wish to challenge names and in the interest of those who are having the contractual agreements done with the registries that it is important that there is some degree of confidence in the contractual provisions, the jurisdictional provisions which apply, but there aren't any unintended adverse consequences of such provisions.

Again I think the ICC is happy to support the WIPO view that mediation and arbitration should be optional. The ICC is also supportive of the principle that we should be promoting consistent policies for dispute resolution across the gTLDs and ultimately in the so-called ccTLDs or ISO 3166 TLDs perhaps more accurately.

(Mr. Francis Gurry): Keith, may I make a suggestion? We will be going through each of the recommendations in the course of the general discussion and if you are going to go through each of them now, perhaps you might wish to delay that and then intervene each time we take up one of the recommendations, because I am sure there will be others who would also have comments on each of the recommendations.

(Mr. Keith Gurry): Okay, Francis. Yes, I am happy to do it whatever way you want it. I was just wondering we have got a lot here and (interruption).

(Mr. Francis Gurry): Then I suggest let's do it when we come to looking at each of the recommendations because I am sure there will be other contributors on it and then this way we can generate more discussion.

(Mr. Keith Gymer): Can I just make one (interruption).

(Mr. Francis Gurry): Please go ahead.

(Mr. Keith Gymer): (the beginning of the sentence is inaudible) ............... famous marks and new gTLDs which certainly support the view that famous marks do need to be appropriately protected by one means or another, there is still some ongoing discussion about what mechanism is best, whether it is appropriate to go as WIPO has proposed or whether in fact you need a simple administrative procedure for the administrative process of domain names, that is still an ongoing discussion. On the gTLDs we strongly take the same view as expressed by Philip that this needs to be subject to an acceptable dispute policy being in place and a sensible structure being there especially to provide for that distinction between the differentiation between use of domain names that I have mentioned according to the ICC principles originally. Thank you.

(Mr. Francis Gurry): Fine. Thanks very much Mr. Gymer and may I ask Ms. Fay Howard please if you would.

(Ms. Fay Howard, Project Manager, RIPE CENTR): Thank you. My name is Fay Howard, I am the Project Manager of CENTR. CENTR is the Council of European National Top-Level Domain Registries. Just briefly for those who don't know, we formed in early 1998 with 36 participants from registries in Europe voluntary funding. We are now in the process of incorporating and so far 19 registries have signed a Memorandum of Understanding declaring their intent to join CENTR. And to put this in context with the WIPO report, the registration policies of even the 19 let alone the 36 vary considerably. And I think it is true to say that there is no two that are identical. With this in mind, in addition to providing a focal point for discussion on matters affecting TLDs and presenting common positions, one of the key aims of CENTR is to collect information on current practices and to develop recommendations for the alignment of those practices.

And now to move to the brief comments on the WIPO Interim Report. The CENTR has now studied the document and we do welcome the WIPO initiative. We found the identification in section 1 of open and closed TLDs, we found this a useful concept, although I think it is true to say that there is no black and white there is a lot of shades of grey that we are experiencing between those. Most of the section two recommendations are already the practice of many CENTR TLDs, and as best practiced in registration policy is a key CENTR aim we welcome dispute prevention activities of WIPO.

Moving on to more generally to the recommendations in the definition of closed ccTLDs of which many CENTR members would have to be slotted, there is almost no issue. These ccTLDs have local jurisdiction and a much, much lesser need of global dispute resolution policy. Many CENTR ccTLDs allow registration only from legal entities within their own countries. Others allow registration from outside, but contracts are subject to local law. We even have a registry that does not allow the registration of trademarks, so there are many, many variations there. The ccTLDs can agree to look at a standard dispute resolution policy, but CENTR welcomes the recognition in the Report that parties do have the right to redress in local courts. And having taken the trouble to catagorize open and closed ccTLDs, one recommendation we would like to see in any future report is that the recommendations specify more specifically which registries are being targeted. Be that gTLD, ccTLD, open or closed. Thank you.

(Mr. Francis Gurry): Fine, thank you very much Fay Howard for your observations and thank you very much to CENTR for having studied the Report and for being willing to consider so openly its recommendations. Is there anyone else who at this stage would like to make some general observations on the Interim Report before we move to consider it in more detail? No. Then what I suggest is that before we have a coffee break we take up the issue which I believe is really the only issue in the first chapter of the Interim Report that requires some discussion. The issue that was just mentioned by Ms. Fay Howard, namely the distinction that is drawn between on the one hand open TLDs and closed TLDs. In this respect we were seeking to address the fact that anything that happens on the Internet, happens potentially globally. And in so far as possible it would be desirable to have a minimum standard of best practices if you like, and procedures available wherever a TLD is an open TLD. At the same time recognizing that of course the WIPO Process is formerly limited to the generic top-level domains and that any participation in its recommendations in so far as they are accepted on the part of ccTLDs would be a matter for the ccTLD itself to consider entirely independently. But may I invite any comments or observations that anyone might have on this distinction and the utility of pursuing this distinction in the final report. And we have heard from CENTR that it certainly would welcome the recommendations being more specific in the final report as to whether they are intended to apply to all open TLDs or the gTLDs or the ccTLDs. Is there anyone that would like to make any observations on this distinction?

(Mr. John Wood, KPMG): Good morning. We would feel that it is very important that there is consistency to the extent that it is practicable in order to create as much predictability. We recognize obviously that local jurisdictions and local policies and procedures may exist in specific jurisdictions, but however to the extent that it is possible we welcome the idea of there being best practices, policies and procedures. It enables across the board and we feel that this should be the case both with gTLDs and ccTLDs to the extent that is possible. That would be the welcome step forward.

(Mr. Francis Gurry): Thank you very much John. Are there other comments or observations on this issue or on the formulation of the distinction? I believe that Boudewijn Nederkoorn was instrumental in formulating or articulating this distinction between open and closed TLDs. Are there any other suggestions about any other way in which it could be formulated to more accurately say what I think we all mean or what we all think we mean? No other observations on this point?

(Professor Michael Froomkin): Just before we go off to the coffee break I just wanted to say that this Report that Francis was kind enough to mention about my personal views. I have brought about 30 copies and I will put them up on the table up-front in just a few minutes. I am sorry there is not enough, there is only so much I could carry on the plane.

(Mr. Francis Gurry): Fine, thank you. Good, well then what I suggest is that we take the coffee break now and immediately after the coffee break we go on to the question of the best practices and in particular the question of contact details and have a discussion on this. And I suggest that our coffee break lasts some 15 minutes. Thank you.

(coffee break)

(Mr. Francis Gurry): So, ladies and gentlemen can we commence perhaps. So, welcome back and I hope the coffee has loosened everyone's tongues and now let us take up chapter two in the session before lunch and we would plan to have lunch at approximately or to break for lunch at about 12.45 p.m. Let us go on then to the question addressed in chapter two broadly of trying to reduce the incidents of conflicts before addressing what to do when there is a conflict, and in particular the recommendations that are contained provisionally in chapter two concerning best practices in order to minimize the number of conflicts that there are.

Let me take them if I may one by one and start with a fairly straightforward question, namely the recommendation contained in paragraph 46 that there should be a formalized contractual relationship between a registrant and the registration authority in any open TLD. You will be familiar of course with the proposal published in I think December or so, by the European Commission for a Directive on Certain Legal Aspects of Electronic Commerce, and one of those provisions in that proposal of course is to require Member States of the European Union to recognize the validity of electronically consummated contracts as general measure to facilitate electronic commerce. Are there any comments that anyone would like to make about this particular recommendation here now, namely the one and two of the WIPO Interim Report that we set out that this should be clear and explicit terms set out in the contract between the registrant and registration authority? No comments? We take no comments to mean that you are in total agreement with the recommendation. Okay, then let us move to paragraph 50 where we set out the suggested details that should be furnished by a domain name registrant or applicant and I won't go through them. But, this is intended to be a minimum list of reliable and accurate contact details that it would be expected that every domain name registrant should supply pursuant to the contract. Are there any observations?

(Mr. John Wood): Thank you. I think I want to make two comments at this point. I think the first comment is to widen the scope of those that actually rely on this information, not just to those that are trademark holders, but also copyright holders who also utilize this information for the purposes of dealing with perspective infringes. The second thing is I think not only is there a need for accurate information, but it being provided in a timely fashion. It is important that information is kept up-to-date. That is very difficult and I think that there is obviously a recognition of a need between the burdensome requirement upon registries to keep it up-to-date, but on the other hand there should be at least an acknowledgment and a recognition that it should be furnished and kept up-to-date in a timely fashion. Thank you.

(Mr. Francis Gurry): Thank you John Wood. Let me elaborate on the first point. It has become apparent to us at any rate that as Mr. John Wood just mentioned contact details for domain name registrants are important not just from the perspective of trademarks. Contact details really are a horizontal issue once again, so many of these issues are in electronic commerce for all intellectual property rights holders. In other words, let us say you were the owner of copyright a large content provider and you find websites on which you believe there is infringing material, then you have to have some means of finding out who it is that is behind that website in order to deal with the alleged infringement. So, it has certainly been drawn to our attention as John Wood has mentioned that contact details are a vital method in tackling the whole question of infringement or piracy on the Internet for intellectual property rights.

Your second observation John if I may come back to it is the updating observation. Are there any other observations on whether the details that are reflected in paragraph 50 are too comprehensive, not sufficiently comprehensive? No other observations. Then paragraph 51 raises the question of anonymity. It raises it and asks for further comments on whether it would be desirable to allow a domain name holder to remain anonymous on condition that its supply contact details specified of a designated agent. Are there any observations on this suggestion? No comments. We request specifically further comments on this. No observations okay. Then dealing further with the contents of the registration agreement. Paragraph 53 deals with some representations that would be required. Representation first of all to the best of the applicant's knowledge and belief the registration of the domain name does not interfere with or infringe intellectual property rights of another party. And the representation that the information provided is true and accurate. They seem fairly standard they feature in a number of registration agreements already. Are there any other observations on it? No.

Limited purpose. And I believe this is one of the matters that you raised John Wood. It was also raised by Ms. Fay Howard in her presentation this morning. The recommendation in paragraph 55 is that the registration agreement contain an agreed term that contact details will be held by the registration authority for limited purposes of the transaction and for facilitating contact with the domain name holder where there is an allegation of infringement of an intellectual property right. Excuse me it wasn't Fay Howard, it was Keith Gymer who raised this point this morning, that the drafting of the limited purpose, of the circumscribing of the limited purpose is too restrictive. Are there any other observations?

(Mr. John Wood): If I may, I would like to elaborate on that following up from what Keith was saying, I think it is important to recognize as I made in my earlier reference to the issue of copyright holders, but here there are also issues of consumer fraud. Therefore, having a very limited scope to this ties in that. So, although obviously there is a need to recognize the privacy issues that were raised by the Commission and others there is a need to recognize that this is not just merely a case of straightforward trademark infringement. There are consumer fraud issues, there are copy (end of tape) .................. may fall into that wax that is at this place. Thank you.

(Mr. Francis Gurry): Thank you very much. You are absolutely right. It is also another matter that is dealt with of course in the proposal for a Directive on Certain Legal Aspects of Electronic Commerce and where it is suggested that precisely for the purpose of consumer protection or the orderly conduct of the mark that contact details be required of any one performing if I may use the loose terminology, anyone providing a commercial service, a commercial use of the website. Okay, then paragraph 57, consequences of inaccurate or unreliable information where it is suggested, and I believe this is a current term of the registration agreement for the gTLDs, .com at any rate. Namely, that if the information is inaccurate or unreliable that this constitutes a material breach of the contract and be the basis for the cancellation of the domain name by the registration authority. Any observations? None. Okay, fine.

Requirements of use. I am sorry paragraph 59 before that deals with submission to jurisdiction but I suggest that we deal with that when we come to chapter three. Paragraph 62, we have suggested that any notion of a requirement of use in relation to a domain name would be an extremely difficult notion to give any practical content and we do not recommend that there be any such requirement in the registration agreement. Are there any differing views to that recommendation?

(Mr. Keith Gymer): Not a differing view Francis, but just an indication that, and then again this is provisional and shouldn't be taken as representing a formal ICC view at this stage. But it would be desirable to have indication with intended use, but we recognize exactly the reservations that you have got there. But equally if you provide the structure and the differentiation at the TLD level itself and it becomes implicit as Philip mentioned earlier you have got .books, it is implicit but it is kind of a use for books. If it is not being used for books it could be a subject of an opposition procedure or something like that, that one could have to deal with it rather than requiring statements of use up-front. If it is .airlines it has to be an airline. If it is not an airline then anyone objecting to it would challenge it and you would have a procedure like that. So, that one could envisage that it wouldn't be, it would be implicit in the TLD identification or the differentiation used in the TLD or SLD or whatever rather than having a requirement to specify it in the application as it were.

(Mr. Francis Gurry): Thank you very much. It is a very interesting point. Of course the existing practice is to allow self identification in terms of use of gTLDs. There is no as it were policing requirement in respect of the similarity of the operations that are conducted under a domain name and the domain into which it falls. But you rightly point out that with much greater differentiation this may be a matter that needs to be looked at further. I wonder whether there are any other observations on this question. Remembering if I may think aloud for a moment that on the one hand, I think everyone acknowledges the interest in keeping the domain names system a very efficient system and not incumbering it too much. And on the other hand, once you do have differentiation, then is it a differentiation which remains self-defining or is it a differentiation which would be enforced in any respect. It seems that one way of looking at the question in addition to the one that you have pointed out Keith Gymer, which is that you envisage some form of strict adherence to differentiated domains. But another way of looking at it would be a distinction between commercial domains and non-commercial domains, recalling that in respect of the latter a non-commercial domain, it may be that you do not require such extensive contact details or to allow access to contact details for as long as the use of the domain name is entirely non-commercial. Are there any observations or comments on this? John Wood?

(Mr. John Wood): (The comment is inaudible)

(Mr. Francis Gurry): No other observations? Okay, let us move then to paragraph 64 which deals with the question of the designation of an agent for service. I think it is fair to say that generally the intellectual property circles are very interested in seeing in the domain name registration agreement a designated agent for service of process. We took the view that this would of course be very useful, however there are many, many millions of domain name holders who operate perfectly legitimately and in relation to whom there is no question of infringement. And requiring everyone to designate an agent for service of process might be taking the attitude that one treats everyone as a potential infringer and might be excessive. Particularly, if you have made provision for reliable and accurate contact details to be available. Are there any observations on this point?

(Mr. John Wood): We feel very strongly that there is no real implication in saying that you must provide an agent for process of service that implies that you have tacitly agreed to that you may be of that egregious characterization. But the fact is as a practical matter from the point of view of litigation, that it is essential that there is some mechanism and some way of ensuring that you can serve once an infringer has been identified. Maybe we should make some reference to the Hague Convention or whatever, but process of service is a vital part of the inevitable and unfortunate armory that has to occur for a trademark holder if they go down this sad and tragic road.

(Mr. Francis Gurry): May I just ask John, when you say we you are referring to whom?

(Mr. John Wood): Members of the Private Sector Working Group.

(Mr. Francis Gurry): You might like just to elaborate on what the Private Sector Working Group.

(Mr. John Wood): They are a group of which some of those that are here are members of 30 to 40 major global trademark holders that are part of an ad hoc alliance who are concerned with the issues of trademarks and how they are being impacted by this collision with the domain name system. And we are very keen to establish an effective legal and commercial framework that makes electronic commerce possible, creates the environment for trust for consumers and recognizes that this is a commercial space.

(Mr. Francis Gurry): Thank you very much John.

(Mr. Enzo Fogliani, Attorney, Naming Authority, Italy): Enzo Fogliani from the Italian Naming Authority. I think that this should not be a recommendation for international body, because it depends on the jurisdiction you are in. In Italy, for example, there is no need for such a recommendation and I think on many other European laws.

(Mr. Francis Gurry): Mr. Fogliani thank you very much. Any other observations? We have a clear division of opinion on the question. Fine, okay. Prepayment of registration fees. Paragraph 67 makes a recommendation that was a very clear recommendation if you recall also in the White Paper of the United States Government that domain names shouldn't be activated unless a registration authority is satisfied that payment of the registration fee has been received. The mechanics of that I think as we discussed at the Brussels hearing before Christmas last time round need to be further investigated and depend ultimately on how the system will be put in place by ICANN. I think the principle however, is relatively uncontroversial as we understand at any rate. Are there any observations?

(Ms. Fay Howard): One small one for the record that some ccTLDs do not charge for registration as yet.

(Mr. Francis Gurry): May I ask whether this is something that covers so-called open ccTLDs as well as restricted or is it (interruption).

(Ms. Fay Howard): It tends to be the more closed ones because the reason that they are in many cases are closed is because it costs a lot of money to, more money to be opened, and they do this as a public service usually from a university or an academic base.

(Mr. Francis Gurry): Thank you. Any other observations? No, re-registration fees. The recommendation in paragraph 69 is that domain name registrations should be subject to the payment of a re-registration or renewal if you like in loose language, fee. That implies of course that the domain name registration would be for a limited period of time. Are there any observations on this? No observations, thank you.

Waiting periods. Waiting periods is a question that has been discussed throughout the whole of the of the discussions that have taken place concerning Internet domain names over the last two or three years. It has at various stages been a controversial question. I think the arguments in favor and the arguments against are well-known. Against, its largely that the domain name system as it operates at the moment is a very high volume, highly automated process. One can only expect that the volumes will increase rather than decrease in the future as more and more people wish to operate under a domain name. And the waiting period could impose an unreasonable delay in obtaining a registration of a domain name on a medium which operates obviously at a very rapid speed. So, we have recommended in paragraph 75 that there not be a waiting period prior to the activation of a domain name. We instead feel that the objectives that it is desired to obtain through a waiting period can basically be dealt with by providing for an expedited alternative dispute resolution procedure for suspension. Are there any observations on this question?

(Mr. Claudio Locker ?, Italian Naming Authority): Yes, just a technical question. I am Claudio Locker from the Italian Naming Authority. From my experience 8 years ago, it happens very often that the domain name must be activated for the same day that it is requested. So, it will be nearly impossible to implement any waiting period at all.