At 05:30 PM 7/11/99 +0200, you wrote:
So given that I am a U. S. citizen and either a trademark owner or a holder
of a domain name, and given also that the U.S. Federal Courts have said
repeatedly that the policies of Network Solutions "do not trump the Lanham
Act (expressing U.S. trademark law)," upon what basis do any of you suppose
that your proposed dispute resolution policy could override U. S. law and have
any effect on my legal rights? What is or would be your source of authority?
If your answer is that I would be bound by contract, two questions arise:
(1) if I am a trademark owner not having a domain name, what contract?
(2) if I want a domain name, and your contract requires acceptance of some
dispute resolution policy, what if I don't want to sign it? If the answer
is that
I would not then get a domain name, would that not then be an unenforceable
contract of adhesion? Put another way, since web pages are the new, cool
way of self expression, would not such a contract requirement interfere with
my right of expression in unconstitutional ways?
Bill Lovell
>This is a rport on the question-b sub-group.
>
>I apologize for the dealy in providing this report, but I was travelling and
>wrongly assuming that I would be able to connect to the Net. Hotel phone
>systems, modem adapters and ISPs decided otherwise :-/ (combined with my
>limited technical abilities, most possibly...)
>
>[Please note that this report has not been reviewed by sub-group members and
>is therefore my sole responsibility. It is provided for information pruposes
>in order to stimulate the debate and contirubtions form those not directly
>involved in the discussions]
>
>Our sub-group is dealing with the basic but nonetheless fascinanting questin
>of whether we should have a standard dispuite resolution policy. It is basic
>in the sense that all the rest depends on an affirmative answer to this
>question (if not, the WIPO Final Report makes no sense at all).
>
>It should be noted that our discussions, as the WIPO Final Report itself, are
>bound to gTLD and do not address in any way psossible dispute polices for the
>so-called ccTLD or territorail TLDs (ISO-3166 TLDs).
>
>As "standard dispute resolution policy" could still have many differnet
>meanings, we devided it into the follwoing five sub-questions:
>
>1. Do we need a uniform DRP at all?
>
>Assumption: we face now a world of non-uniform (differenctiated) dispute
>resolutions mechanisms: namely, the worlwide courts and legal systems, plus
>the current NSI DRP.
>
>If we are to build a DRP as an alternative to court litigation, this
should be
>uniform. If not, it would be a perfect waste of time and will leave us in the
>same level of conflituality and insatisfaction that has been the commonplace
>during the last three years.
>
>Comment: Indeed most participants in the WIPO process and the current DNSO
>works fervously favour a uniform DRP, as precisely the whole discussion
>originated largely in the absence of such uniformity, and the unsolvabvle
>multijurisdictional conflicts that, in many cases, result in the absolute
>absence of any available dispute resolution mechanism (ie, results in the no
>solution solution).
>
>In fact recourse to Courts remain available to all parties. This is still an
>added reason for escaping forum shopping and choice of laws hell-scenarios in
>building the "alternative".
>
>It has been noted by a former member of the WIPO Panel of Experts that the
>recourse to Courts after an Alternative Dispute Resolution decision could be
>limited or not available in many instnaces. This arguments tells nothing to
>those favouring a uniform DRP per se, and has failed so far to convince all
>those wanting to keep open the recourse to Courts, but it deserves further
>consideration, and our sub-group will pay attention to this issue.
>
>In sum: there is a general preference for a uniform dispute resolution
>mechanism, with some resevations form some parties as to the implications of
>such DRP.
>
>2. Does a DRP need to be gTLD-based or uniform accross gTLDs?
>
>Assumtpion: "unfirom" does not imply "universal". Equal things should be
>treaten equally,; different situations desserve different treatment. At
least,
>uniform means unfiorm for each gTLD. At most, it means uniform accross all
>possible gTLDs.
>
>Comment: The current three gTLDs (.com; .org and .net) even if intended for
>differnetiated use in their origin, have been used in similar ways for a long
>time. In this regards, and specially given the fact that the proosoed WIPO
DRP
>is limted to cybersquatting (in tis large sense) no differnetiation should be
>applied to them.
>
>But if new gTLDs are to be created and some of them are specifficaly targeted
>for not all-encompasing uses (personal gTLDs; non-commercial gTLDs...) a
>differentiated DRP for them could be envisioned.
>
>3. Does a UDP imply just uniform material rules or also procedural ones?
>
>Assumption: Uniform in itself means not that much. At least, it means having
>the same material, substantive rules (ie: what is cybersquatting; what are
the
>possible determinations etc). At most, it menas that procedural rules are
>exaclty the same (terms; fees; rules of procedure etc).
>
>Comment: While the arguments for uniform substantial rules seem compelling to
>all those in favour of this system (and taking into account that there are
>some people who simply do not support any alternative DRP or not an uniform
>one), the arguments for unfiorm procedural rules seem less compelling.
>
>4. Is a UDP compatible with multiple ADR service providers? Is a single
ADR-SP
>a better choice?
>
>Assumption: Uniform or not, DRP can be administrated by just one DRP-SP (for
>instance: WIPO) or multiple DRP-SPs applying the same rules (for instance:
>WIPO, ICC; UNCITRAL, AAA,-...). Either each registrar/registry chooses one
>possible DRP-SP or there is an ICANN-approved list of UDR-SP common to all
>registration authorities. The question then is "who makes the choice?"
>
>Comment: Simplicity would faovur a single DRP-SP. But agian, the argument
>falls short of being fully compelling. A list of competent (and
accredited by
>ICANN accordng to some objective criteria) could all serve the same
policy. In
>this case all registration authorities should recognize all DRP-SPs, and
>include them in the registration agreements. If not, consolidation of cases
>and cohehrence of decisions would be seriously harmed.
>
>Once again, some people insist that �we already have the Courts".
>
>In case we finally recomned a multiple ADR-SP approach, we should provide
>ICANN BoD with some guidance of the possible cirteria for accrediation.
>
>5. Should a DRP be registry-based or regsitrar-based?
>
>Assumption: we can achieve similar results by having a single dispute policy
>accrosss all registrars (ie, x number of identical DRPs) or having just one
>single DRP at the TLD level (in principle, at the registry level, but a
single
>registry could in principle have two separate policies if they are to run two
>kinds of gTLDs that we might beleive desserve differnet SRPs, even if this is
>not the case today).
>
>Comment: it has been reightly pointed out that it should be either TLD-based
>or regsitrr-based, as a registry could serve vaious TLDs, and even various
>TLDs with differnet DRPs. Indeed, if the answer to the first question is that
>we do want a unfirorm DRP for at least each gTLD, and at this stage a uniform
>one for the current three gTLDs, the only explanation for going the
>registrar-based DRP way is the refusal form NSI to accept ICANN�s
authority or
>any directive coming form it. "Realpolitik" considerations might finally
>impose one way or another, but they should not bind our poicy
recomendations.
>
>FTLD-based does not mean that the registryt administrating the given gTLD has
>any responsibiity in writing or administrating such policy, as it has been
>noted that these are not functions we could wich a registry to perform. It
>simply means that it should be unfirom form that point dowwards, and that the
>rgistry should implement the DRP decisions in the database.
>
>
>Hope this report helps, and that sub-group members find it acurate. I
>apologize once again for the delay in providing it, which is only my fault.
>
>Please coment, discuss, disagree and refine. We will be monitoring the GA
>list, but I suggest you send all coments to me so I can forward them to the
>sub-group list and compile them.
>
>Best regards,
>
>Amadeu Abril i Abril
>[EMAIL PROTECTED]
>
>PS: Besides the members listed in the gernal report sent by Jonathan Cohen,
>Keith Gymer form the Business Constituency and Marylee Jenkins from the
>IPConst are also members.
>
