Michael and all,
We [INEGroup] amongst several other groups as well as myself personally,
find much of your critique and concerns well founded in both practice and
in existing US and international law in electronic commerce and
communications. Not to mention that many of the WIPO
provisions/recomendations in the WIPO RFC-3 "Final Report" are in direct
conflict with the mandate of the White Paper and the 1996 telecommunications act
as well. Your Ten Points state these concerns very nicely. As follows:
======
1.Bias. The plan was biased in favor of trademark holders;
2.Excessive scope. Rather than addressing only trademark law, and focusing on
the
"cybersquatting" problem, RFC 3 sought to create a system that could
adjudicate every type of intellectual-property dispute relating to a domain
name-including
disputes based on controversial theories such as the right of personality.
3.`Smorgasbord' approach to law. Instead of directing arbitrators to apply
otherwise
applicable law, RFC 3 proposed using additional, different, rules it
selected-rules that will often disadvantage registrants.
4.Enabling censorship. The RFC 3 failed to protect fundamental free-speech
interests including parody, and criticism of corporations;
5.Potential for intimidation. RFC 3 created an expensive loser-pays arbitration
process with uncertain rules that would intimidate persons who have registered
into surrendering valid registrations thus enabling increased "reverse domain
name hijacking";
6.Relied on potentially unenforceable contracts. Because the contracts of
adhesion
proposed by WIPO were so one-sided, there was reason to believe they would not
be enforceable in court and that the entire proposal was therefore unworkable.
7.The nature of available judicial review. RFC 3 would have allowed disappointed
challengers to domain names registrations to appeal to a court in all cases,
but would often deny this privilege to the original registrant if he lost.
8.Zero Privacy. RFC 3 provided zero privacy protections for the name, address and
phone number of individual registrants;
9.Discussion of new gTLDs. RFC 3 took an over-timid approach to new
TLDs. The Final Report's conclusions are welcome, as far as they go
- but do not go
far enough.
10.Treatment of famous marks. RFC 3 created new, cumbersome, unwarranted,
procedures to protect a potentially unlimited number of "famous" trademarks.
=====
Our most spicific concerns are directly associated and well satated in your
points 2,3,4,5,8,9,and 10.
Michael Froomkin - Public Interest Representative, WIPO Panel of Experts wrote:
> I invite you to read a Commentary I have written on the World Intellectual
> Property Organization's Final Report on "The Management of Internet Names
> And Addresses: Intellectual Property Issues". My comments are at
>
> http://www.law.miami.edu/~amf/commentary.htm
>
> WIPO's report is at http://wipo2.wipo.int/process/eng/final_report.html
>
> Although I was a member of the "Panel of Experts" that WIPO established to
> advise it in this process, this document represents my personal views
> only, and the opinions expressed in it should not be attributed to WIPO or
> to any other member of the Experts Group other than Laina Raveendran
> Greene, who has authorized me to note her agreement with the substance of
> this Commentary.
>
> The Internet Corporation on Assigned Names and Numbers (ICANN) will be
> considering its reaction to WIPO's advisory report at its meeting in
> Berlin, May 26, 1999. Comments to ICANN may be directed to
> http://www.icann.org/comments-mail/comment-ip/maillist.html
>
> Here is part of the text of the executive summary of my Commentary:
>
> The World Intellectual Property Organization's Final Report on "The
> Management of Internet Names And Addresses: Intellectual Property Issues"
> is in many respects a substantial improvement on WIPO's Interim Report,
> RFC 3.
>
> The attempt to define "abusive registrations" represents a
> good-faith effort to define cybersquatting. While this new definition will
> no doubt benefit from public comment and discussion it has yet to receive,
> the proposal in the body of the report seems to hew closely to the
> definitions evolving in the various courts that have considered the issue.
> Once flaws in the formal expression of the policy in the Final Report's
> Annexes have been corrected, this proposal should represent an improvement
> over the current NSI dispute policy, one that will serve the legitimate
> interests of trademark and service mark holders without opening the door
> to "reverse domain hijacking".
>
> Unfortunately, the Final Report leaves essentially
> unchanged the proposals in the Interim Report regarding the proposed
> treatment of globally famous trademarks. It proposes a baroque, ad hoc,
> quasi-judicial procedure based on vague (and in one case prejudicial)
> criteria to define when a trademark is sufficiently internationally famous
> to be granted special privileges on the Internet, and proposes special
> privileges that trademarks do not currently have under law. At present
> there is no agreed definition of a globally famous mark, although
> WIPO-sponsored panels have been seeking to formulate a definition for
> years. Furthermore, the WIPO proposal rejects imposing any upper limit on
> the number of trademarks that may be declared "famous," perhaps because it
> is impossible to predict how many marks will qualify.
>
> As noted regarding the Interim Report, parties who lose
> their domain names under the proposed dispute resolution procedure and
> believe the arbitrator erred may find it difficult to find a court capable
> of hearing their claim. Because the Final Report restricts the dispute
> resolution procedure to a much narrower class of cases than did the
> Interim Report, one can expect that there will be many fewer such cases
> than initially feared - but not zero.
>
> In addition, there are a number of ambiguities and
> possible errors in material which appears for the first time in the Final
> Report. This material will benefit from public review; and in some cases
> some of this material may need revision. In particular, the procedural
> proposals in the Annex contain what appears to be a serious drafting
> error.
>
> While not strictly an intellectual property issue, and
> without wishing to minimize the complexity and importance of the real
> issues that remain to be determined, the Final Report provides a less
> ringing endorsement than one might have hoped for new global Top-Level
> Domains (gTLDs) and for the creation of a new privacy-enhanced gTLD for
> non-commercial uses.
>
> [...]
> Several important issues raised for the first time in the Final Report
> require careful consideration, notably the definition of cybersquatting,
> and the proposed procedural timetable. As the Final Report contains a
> wealth of material that is new, or substantially different from the
> Interim Report, including the critical Annexes, further review and public
> comment is likely to be essential before ICANN takes action.
>
> [Please feel free to repost as appropriate until May 27, 1999.]
>
> A. Michael Froomkin | Professor of Law | [EMAIL PROTECTED]
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> +1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
> --> It's warm here. <--
Regards,
--
Jeffrey A. Williams
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail [EMAIL PROTECTED]
Contact Number: 972-447-1894
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208
