<nettime> [RRE] WIPO's final report on domain names

[Phil Agre <pagre@alpha.oac.ucla.edu> (by way of t tbyfield <tbyfield@panix.com>)]

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Date: Mon, 17 May 1999 10:05:03 -0400 (EDT)
From: Michael Froomkin <froomkin@law.miami.edu>
Subject: A Commentary on WIPO's final report on domain names

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    |   amf@law.miami.edu
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.   <--

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