WIPO Internet Domain Name Process

Transcript - part 1: Brussels regional consultation

Swissôtel
September 29, 1998

(Mr. Francis Gurry, Chairperson, Legal Counsel, WIPO): If I may say a few words at the outset about the process itself. We are well aware that discussions have been carried on intensely, internationally in the course of the last two years. And I should say at the very outset that it is not our intention at WIPO to lose sight of those discussions or of the learning that emerged in the course of those discussions. It is a somewhat new process for WIPO as an intergovernmental organization, because it is a process which in the first place is carried out largely directly with the interested parties, with the interested circles. We understand that this is the case first of all because of the nature of the subject matter of the process, that the WIPO process is largely concerned with the possible establishment of mechanisms as opposed to norms, that is, mechanisms for the resolution of very practical problems that arise as a result of the intersection of the traditional intellectual property rights as they have been organized in the physical world, based on separate territories with the attributes of sovereignty, and on the other hand a global medium in which domain names operate to give global access to the holder of the domain name.

Another reason for carrying out the process directly with interested parties, is that the domain name system has largely arisen as an ad hoc system which has up until now been almost entirely privately administered. So that there is an intersection also between public authorities on the one hand, those that regulate intellectual property rights as we have been used to them up until now and, on the other hand, these new species of spontaneously mutated intellectual property rights which are domain names. It is also a new process for

WIPO in so far as the modalities that are being used are concerned. The chief modalities of course, are the use of the web site that we have established for the purpose of this process. It has been an active web site. We hope that it will become even more active as the process progresses. We now have some 507 persons or entities from over 50 countries that have registered on the web site to receive direct mailings concerning the process. And at the moment we are experiencing somewhere around about 20 to 25,000 hits per month on the web site. And we hope that that is something that will increase as the process gathers momentum and becomes more known. Despite the fact that it is a process that we are carrying out directly with the interested parties, we have just received the approval of our Member States to undertake this process. And it would not have been possible for us to have continued the process without that approval or without the close cooperation throughout the rest of the process with our Member States. We are particularly grateful for this reason also to the European Commission for the work that it has done with respect to its own Member States in supporting WIPO's role and we think that this cooperation, particularly in the organization of the hearings that are being conducted throughout the world with our Member States (even though the process is concerned direct with private parties as it were) is an indispensable element in the process.

If, I may say a few words about some of the basic principles that we think underline the process. First of all, it goes without saying that WIPO, being an international organization, wishes to seek to attract the widest possible geographical representation or participation in the process. We are for this reason holding 11 regional hearings in this first round and we will hold an additional six or so regional hearings around January next year. In addition to the widest possible geographical participation, as a second principle we also wish to attract the widest possible sectoral participation in the process. While we are concerned with intellectual property rights, we do feel that any recommendations that may be made as a result of the process must have technical viability. It is, therefore, very important that any such recommendations not only be legally practical but also technically practical and for this reason we wish to hear the views and obtain the participation of not only the trademark community, but also the Internet engineering community and the very important or at least very vocal free speech or public interest lobbies.

A third principle that we are applying in the process is that we do regard it as an open process. That is, despite the fact that there have been fairly intensive discussions for a period of over two years now, we do feel that it is important that WIPO as the institution managing the process not have any "A priority" solutions and not have any "A priority" recommendations concerning any of the issues which are under examination in the process. That is not to say, as I mentioned earlier, that we intend to ignore all of the learning that came out of the discussions prior to the initiation of this particular process.

Finally, as a principle of the process, as an organizational principle, we have appointed a Panel of Experts to assist us in the process. We regard the role of the experts as one in which their primary function would be to advise us in respect of the issues from the point of view of the particular sector with which they are most familiar. We do not expect experts to be advocates of any particular view. We do, however, expect the experts to be somewhat akin to party-appointed arbitrators. That is to say that, while they will be neutral and will play a neutral role, one of the functions would be to ensure that the interests and needs and concerns of the sector with which they must familiar are not overlooked in the course of the process and are given appropriate articulation and expression.

We have distributed and have made available a list of the experts that we have appointed to assist us in the process, and may I take this opportunity to introduce immediately Mr. Harald Alvestrand, who is the Area Director for operations and management of the Internet Engineering Task Force and who is a national of Norway. And on the far right of the table, Mr. Boudewijn Nederkoorn, who is the Chairman of the Ripe Center and I believe we are just being joined by Madame Maryse Philbert, who is the Director of the Trademarks Department of Synthélabo in France. A little later in the morning we will also be joined by Mr. Geert Glas, who is from Belgium, and who is the Chair of the INTA, the International Trademark Associations Internet Sub-Committee, and who will be standing in today for Mr. Frederick Mostert, the President of INTA. May I also introduce one of my colleagues, Mr. David Muls who is the Senior Legal Officer in the Electronic Commerce Section at WIPO and who is at home here in Belgium, being a national of Belgium.

Let me say then one or two words, about the various stages in the process. The stages are really conceived around three requests for comments. The first of those was issued, as you know, earlier in the year, and concerned the terms of reference, of the process and the procedures that we intended to use in the course of the process as well as the time-table, which is a somewhat intense one. That first request for comments closed and we have consequently issued a second request for comments which is available or has been made available here today, and addresses the issues of the process concerned with what the process would examine. It is on the second RFC and on the issues that it covers that today's hearing

will be held. Following the round of regional consultations that is at present being held, it is intended that we should draft, with the assistance of our experts, a preliminary or interim set of recommendations or report, and make that available at the commencement of next year or in mid-December this year. That interim set of recommendations will in turn be the subject of a further round of regional hearings as well as a request for comments, which will be available on our Internet site.

At this stage, may I simply thank you all for attending this morning. We are extremely grateful that you are so numerous in attendance this morning and we are extremely grateful to the Commission for all of the assistance and support that it has given in order to publicize this particular hearing. With that may I ask Mr. Waterschoot to say a few words.

(Mr. Paul Waterschoot, Director, Directorate General XV/E, European Commission): So, good morning everybody, also welcome from the side of the Commission. We are very happy to participate in this consultative process which has been organized by WIPO. I am Paul Waterschoot, I am a Director of the Commission in the Internal Market, and in my area we deal with industrial property, copyright and some regulatory issues regarding media and electronic commerce. I am also very pleased that this hearing is held here in Brussels in the sense that from the Commission's point of view it is extremely important that European views are heard in this debate. The WIPO exercise is part of a larger reflection which we have started in the Commission, regarding the functioning of the Internet and electronic commerce.

We have already produced a number of documents regarding the Internet and Electronic Commerce. We have produced a Directive on Digital Signatures. There has been a communication regarding Legal and Harmful Content on the Internet. We have made a Directive on copyrights, which is presently being discussed in Council and in Parliament. And we are now working on a Directive regarding electronic commerce and contractual arrangements regarding electronic commerce including the very sensitive issue of liability. The discussions on trademarks and the Internet I think should be governed by a number of principles and you have already mentioned such a number of them. I think it is important that there is a balanced representation of international organizations and private sector interests in this process. I also think that some degree of competition in the allocation of the domain names is a useful principle and the need for transparency is essential. Originally, the function of domain names was to facilitate connectivity between computers in the Internet and using business identifiers has of course led to a conflict with the use of trademarks and we all know the value of these trademarks in the commercial environment and the underlying tensions which flows from this. The Commission attaches great importance to the recognition and the protection of intellectual property, both in the traditional sense, and in the new digital environment. And, as I already mentioned, we have proposed a global Directive as regards the protection of copyright and we think that the debate presently regarding domain names and trademarks is part of this whole debate.

Coming back to trademarks and the process of the Green Paper and the White Paper, which started in the U.S. I think that we are concerned that there are a number of requirements which should be complied with, and I think that one of them is that the role of WIPO should be recognized for all the areas which concern the conflicts between domain names and intellectual property rights. It is the most evident organization and is best qualified for this type of task, so we very much support the process that has been started by WIPO. During the course of '97, an intensive international effort was undertaken on the preparation of a dispute settlement system, and I think it is important that the work which was undertaken then and the present consultative process, that the result of this work should not be lost, and we have to ensure that the new organizations which are put into place take account of this work.

I think there are three elements in the work which has been undertaken by WIPO which are relevant. One is the prevention and resolution of disputes. The other is the protection of famous trademarks on the Internet and the third area is the consequences of the introduction of new generic top-level domain names on trademarks. These are different areas and the importance of these different areas are different. I think for us, from the Commission's point of view, the area of prevention is of the utmost importance. And I think that the discussions which will take place today will very much be of relevance to this particular issue.

The other area is the process of resolving disputes. I think it is of importance to stress that this process should be uniform and I think that if one would have different types of dispute settlements for different areas, it would create confusion and that should be avoided. That means that in the long-term we should also encourage national organizations to apply or enter through the same system of dispute settlement.

Turning now to the area of famous trademarks, which was the second subject I mentioned in my list. I think that this creates a particular problem, in the sense that we have to agree to some kind of criteria which are relevant for these famous trademarks in the context of the Internet. And here again, I think that the discussions today will very much be of relevance.

And finally, I think that there is some work that has to be done in studying the repercussions of the introduction of new generic top-level domains on trademarks. So, these are the different issues which from the Commission's point of view are very much of relevance in these consultative process and I would encourage you all to participate as much as possible in this debate and to submit your different comments, because it is important to get this system right and to avoid in the future too many conflicts. I mean, some conflicts will occur, but too many conflicts may occur and then valuable trademarks could be put into danger, which I think is something we should all avoid. Thank you.

(Mr. Francis Gurry): Thank you very much Mr. Waterschoot and now I will just go through very briefly some of the practical arrangements that we foresee for today's hearing. The first is that it is in the nature of a hearing. So, what we would like to do is to listen as much as possible. My colleague, David Muls, will outline in one moment how he intends to deal with the formal presentations that will be made and then how we will deal with the open discussion following those formal presentations. I am most grateful to Mr. Waterschoot for having outlined the issues that we will be dealing with this morning. In particular, in so far as possible, we would ask you to confine your interventions to those issues and not to stray too much into the blurrier issues of the process that are taking place independently of WIPO. You should feel absolutely free to speak in either English or in French. We have simultaneous interpretation available. We would ask those who would be making formal presentations or views, if they would mind speaking from the podium that we have over there.

As far as anyone else is concerned, in the course of the open discussion you may feel free either to use that microphone or there is a gentleman who will be circulating around the room with a microphone.

Today's proceedings will be recorded and we do intended to make available the transcript to the proceedings on our web site. We have done this with the first hearing held in San Francisco and although the transcript is not yet available on our web site, we intend today's transcript to be made available on the web site. Now, if I may ask David Muls to let us know how we are going to proceed.

(David Muls, Senior Legal Officer, Electronic Commerce Section Office of Legal and Organization Affairs, WIPO): Thank you very much. Good morning ladies and gentlemen. As explained by Mr. Gurry, this is very much an information-gathering exercise, as opposed to the normal conferences where people on the bench would speak. It is the intention that most of the input comes from the participants in the room. As you may know, there are basically three formats in which a person can participate in this hearing. The first format is just to simply attend and listen to what is going on. The second format is to actually make a formal presentation to the panel of experts and WIPO. And the third format is to listen to a formal presentation and then make observations on the formal presentation in the form of comments. A number of people have indicated that they wanted to make a formal presentation and I will go through the list of those people in a moment. I think it is to be expected that some of these people may arrive in the course of the day, so there will be a need for a certain degree of flexibility as to when people will speak.

On the basis of the number of people that have indicated that they wish to make a formal presentation, we have approximately 25 to 30 minutes per presentation and we would suggest that the person in question speaks for approximately 15 minutes and that the remaining 15 minutes is reserved for comments and questions by the audience, and comments or questions by the Panel. As Francis explained you can make your presentations in French and English. You should, however, each time you make your presentation go to a microphone that will be either available in the room or to the one on the podium. And please, for the purposes of the transcript, it would be useful each time you make an intervention to clearly state your name and your affiliation, so that this can be properly reflected in the documents.

With your permission, I will now go through the list of persons that have indicated that they wish to make a formal presentation. And I will each time mention their name and affiliation. If anybody who wishes to make a formal presentation is not mentioned here, I would ask them to raise their hand and then we will add them to the list. First, Mr. Abril I Abril, Legal and Policy Advisor of Nominalia and CORE; Dr. Willie Black, Managing Director of Nominet and Member of the gTLD-MoU Policy Oversight Committee; Mr. Keith Gymer, IP Advisor for British Telecom; Mr. Howard Hill, Know-How and Information Services Manager for Rouse and Co. International;. Mr. Paul Kane, Chairman of Internet Computer Bureau, POC; Mrs. Isabelle Leroux, Avocat associé Dubarry Le Douarin Veil; Mr. Philip Sheppard, Managing Branding Affairs, AIM European Brands Association;. Mrs. Daphne Yong-d'Hervé, Policy Manager, International Chamber of Commerce; Mr. Wolter Bettink, Attorney, Houthoff and Mr. John Wood, Consultant, Microsoft. May I suggest Mr. John Wood. Is there any other person who wishes to make a presentation in addition to the names? Of course you will always be able to get feedback on a presentation that is given. If we could start with Mr. John Wood please.