__________ There is agreement that mandatory ADR, particularly in cases of bad faith -cybersquatting - is the preferred approach to dispute resolution, subject to the proviso that an ADR decision would not preclude a party from seeking relief in court, and that the ADR decision would not be binding on a court having jurisdiction. The new "universe" of the Internet, with global, trans- national dimensions, makes it nearly impossible to expect national courts to deal with certain disputes that are bound to arise. __________ There is much that could be said about this report, but the passage quoted above leaps out at me. It is assumed that one knows what "cybersquatting" means. Is this like Justice White's comment about obscenity -- "I can't define it but I know it when I see it?" The reference to "a court having jurisdiction" seems to recognize that DNSO, ICANN, etc., do NOT have jurisdiction over trademark aspects of domain names. I doubt that such acknowledgment was intended, true that it may be. Making it "nearly impossible to expect national courts to deal with certain disputes . . ." seems quite presumptuous: by what expertise does any ADR policy show that it could do any better? The text goes on to acknowledge a deep and resounding inability to deal with national trademark laws, so why is this process continuing? Other than having inherited the notion from Network Solutions, what is the rationale for techies to get involved in trademark law in any event? One of the abiding features of the internet, which it seems to me should be protected at all costs, and without regard to whatever other inconveniences may arise therefrom, is that of full public access. What possible rationale can be advanced for the notion that in order for a person to become an internet participant, that person must agree in advance to give up certain rights that are established by the law of that person's country. In the U.S., that counts as a restraint on free speech, and while governments have the authority to condition the use of public facilities such as telephones and the like upon acceptance of certain regulations, DNSO and ICANN certainly do not. To exact a price consisting of an abandonment of a constitutional right to seek redress in the courts as the ticket for entering into the internet as a domain name holder, by way of a contract of adhesion through which one is forever precluded from so entering unless the contract is signed, seems to me to be contrary to every universal principle of justice, and very likely an actionable offense. (Just because no one has yet had the wit to properly challenge NSI on its policy does not legitimatize that policy.) In short, I see at least some of the WIPO document, and some of this report, as having swallowed whole much of the "NSI common law of trademarks," in spite of the oft-repeated observations in U. S. Federal Court opinions that NSI cannot re-write trademark law. By sheer repetition, a mindset has been established in which the onus of abiding by various rules and policies is again placed on those who may be perfectly innocent domain name holders, while one NEVER sees any provisions through which a covetous trademark owner would be called to account for attempting to poach on a legitimate, lawfully acquired and lawfully held domain name. The playing field would seem still to be tilted precipitously. Bill Lovell
