browse comments: WIPO RFC-1

WIPO RFC-1
dstein@travel-net.com
Sun, 23 Aug 1998 19:06:46 -0400

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COMMENTS ON WIPO RFC-1

The following comments are made by Dan Steinberg, and are not representative of any Government, NGO or organization. In the spirit of the WIPO process, an effort has been made to avoid discussing substantive issues at this juncture.

The White Paper asks the following:

The U.S. Government will seek international support to call upon the World Intellectual Property Organization (WIPO) to initiate a balanced and transparent process, which includes the participation of trademark holders and members of the Internet community who are not trademark holders, to (1) develop recommendations for a uniform approach to resolving trademark/domain name disputes involving cyberpiracy (as opposed to conflicts between trademark holders with legitimate competing rights), (2) recommend a process for protecting famous trademarks in the generic top level domains, and (3) evaluate the effects, based on studies conducted by independent organizations, such as the National Research Council of the National Academy of Sciences, of adding new gTLDs and related dispute resolution procedures on trademark and intellectual property holders.

The mandate, as stated by WIPO, is:

The objective will be to obtain consensus among all the stakeholders of the Internet on the issues signalled in the White Paper.

With such stated support, it is curious that the mandate in RFC-1 is:

A.Uniform Approach to Resolving Domain Name Disputes: Recommendations will be formulated on methods to prevent and to resolve Internet domain name disputes involving intellectual property rights.

This is clearly a broad expansion of the mandate from the White Paper, which asked for a uniform policy on cyberpiracy, and not "all disputes involving intellectual property rights" It may be in WIPO's interest to collect opinions on this subject at some time under a separate investigation, but it is not appropriate to do so under the banner of the White Paper.

With respect to famous names, it is interesting to note WIPO's (and indeed the White Paper) seizing of this issue. The famous mark provisions of the Lanham Act are recent US law, but already in force. As the new entity charged with developing policies for admission of TLDs will be located within the US, and as there is no plan to move the primary root server, it would appear that there is no need to investigate the interaction of famous marks with TLDs. US law already applies.

It is also inapropriate for WIPO to make a unilateral definition of cybersquatting as "persons who have made it a practice to register, as domain names for themselves, the trademarks of other persons or enterprises," . Perhaps an area of inquiry for WIPO would be to seek opinions on a useful definition for cybersquatting. For example, some would contend that the definition should be extended to include hoarding and warehousing of domain names. Others would restrict the definition to instances of clear extortion by the registrant (which is of course a question of fact for an appropriate court).

 -- Posted automatically from Process Web site