browse comments: WIPO RFC-2

WIPO RFC-2
ABPI (process@wipo2.wipo.int)
Wed, 2 Dec 1998 15:37:46 -0500

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Comments on the questionnaire contained in the document INT/EXP/GE1

1) In fact, it would be desirable to perform researches on novelty and usage of the domain name as a trademark as a pre-condition to its registration. However, the complexity and extremely high cost associated with this type of research may cause such procedure to become unfeasible. A suggestion would be to require the applicant to submit an affidavit declaring that to the best of his or her knowledge the domain name envisioned does not violate prior trademark rights of third parties.

2) In our view the certification should refer to trade mark and related rights.

3) In our opinion, the applicant for a domain name should indeed provide evidence that at least in his country or origin he holds trade or trade name rights in and to the proposed name.

4) In our opinion, yes, so as to prevent violation of third parties' rights and confusion for the public.

5) In our view, yes.

6) A suggestion would be to require an affidavit from the applicant declaring that the application does not contain any misleading and false material. Eventual evidence that such declaration is untrue should result in cancellation of the domain name registration.

7) We would draw attention that the provisions of TRIPS relating to trade marks already appear to provide a significant level of harmonisation. We do not believe that further steps to that effect need be taken.

8) In our opinion this should not be a requirement.

9) In our opinion, yes.

10) Yes, in our view this would be a desirable measure.

11) This question is unclear to us.

12) In our opinion, yes.

13) In our opinion, yes.

14) This question appears to demand further discussion.

15) A favourable presumption should solely be contemplated in case the dispute involves unauthorised use a famous trade mark. However, the presumption should be juris tantum, so that it may be discarded by possible evidence that it is not applicable to a future case.

16) In our opinion, yes.

17) In our opinion, yes.

18) This suggestion is very interesting and might be implemented with the assistance of international entities in the intellectual property area, like AIPPI, WIPO, INTA and ASIPI.

19) This would even be required in light of the domestic legislation in Brazil in view of the principle of due process.

20) In our view a statute of limitations should be instituted, except for cases of fraud, such as , e.g., misadoption of a third party's well-known mark.

21) In our view an ADR system should be instituted to covr any type of dispute addressing domain names.

22) In that case it would be necessary to draw a clear definitionof the range of acts to be covered by the resolution approaches.

23) To the extent that it is possible, it would be desirable,in fact.

24) Yes, ADR, including mediation, arbitration or mediation followed by default arbitration.

25) In our opinion, yes.

26) Yes, and in our view the standards of TRIPS and the Paris Convention should be taken as guidelines.

27) Yes, as anticipated above.

28) In our opinion the recognition of notoriety of a mark is a factual question that should be raised and analysed in the very dispute resolution procedure, except in countries instituting a specific prior declaration effective for a given period of time.

29)The unauthorised adoption of a famous mark as a domain name has dramatic economic and moral implications. In fact, it is a source of confusion for the public and a tool of undue economic advantage for the domain name owner, resulting in passing off and many times in disparagement.

30) Pls clarify what is meant by gTLDs , ccTLDS and TMK.

31) We agree.

32) We agree.

33) Pls see item 30 above.

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