WIPO Internet Domain Name Process

Transcript - part 3: Brussels regional consultation

Swissôtel
September 29, 1998

(Mr. Keith Gymer, IP Advisor, BT): I participated and BT participates in the PSWG, which John Wood mentioned, the Private Sector Working Group which is an ad hoc group of 40 or 50, major businesses ranging from media companies to pharmaceuticals and crossing several business sectors. Presently, and I am going to be speaking here with an ICC International Chamber of Commerce brief, as present Chair of the ICC Task Force on Domain Name Issues, which has been providing broad-base business perspective and input to the process, in particular to the formation of the new IANA. Additionally, I will add a few words from time to time from the perspective of the International Trademark (INTA) perspective, because I also sit on the INTA Internet Sub-Committee and my colleague on that Committee, Geert Glas may be otherwise occupied as an expert, so I have to say a few words from INTA's position as well.

The ICC is a very large and well recognized international business organization. As you can see, it draws its membership from across a very wide profile of business and a very wide international base. It has considerable experience in issues like alternative dispute resolution and private sector rule-making, participating in negotiations and developments on the E-commerce regulation at present. The ICC position that I am going to be outlining here is also explained in more detail in a Policy Statement, an accompanying commentary on the White Paper, of which I have a few copies. I think probably a lot of people would have already seen this. But we can certainly make more copies available if you want to leave me your card or give me your e-mail address. We have certainly taken as our starting point the White Paper from the U.S. administration and we strongly support the recommendations in that Paper to move to a private sector, stakeholder, administration of the domain names system. Our principle concern from the business perspective has always been and remains the stability of the Internet. It is crucial to us that we want to maintain the stability in terms of universal interconnectivity and operation of the Network. Obviously, given its name, the ICC is strongly supportive of an internationally representative participation in this process in the new organization. And to that end, ICC has itself proposed a number of candidates for the consideration to the Interim Board, for example. Again, as a business oriented organization clearly we support open market competitive solutions wherever practicable. At this stage our position is broadly in favor of, we see the arguments probably more persuasive in terms of having competition at the registrar level rather than necessarily at the gTLD registry level. It should be recognized that there is essentially some competition of course between country code TLDs at registries already. But again, from a business perspective, that interest in promoting competition is tempered by a very clear and strong belief that we don't want to see competition at all costs that produces simply confusion and chaos in the domain name space, because that won’t help us in our objectives either. And that I think summarizes our principles, which objectives are looking at the Internet as a commercial medium, where we think it is going. We want to utilize and exploit this opportunity to the best that we can and that requires the operational stability which I mentioned before. We want global recognition, global participation in this. From a business perspective we are, as you can imagine, keen on having consistent and coherent procedures around the world so that businesses which are operating in one area can rely on at least broadly similar procedures being applicable in other parts of the world, in the same way as they would if you were doing international contractual arrangements, for example. To that end obviously we have been supporting and calling clearly for adequate business representation, broad-based commercial representation in the new bodies dealing with this administration. Business is quite clear that it recognizes that the commercial investment that is driving the growth of the Internet is going to be coming principally from private enterprise in the future and from people wanting to come on the Internet and do the business on the Internet. That is going to fund the increased growth of the information infrastructure, the development of new services and businesses again commercially are going to be a principle force. Again, as almost any business will recognize, its name is vital, its name is an extremely valuable asset that it spends a great deal of effort promoting, a great of deal of investment in gaining reputation and recognition. There is no doubt that businesses view the protection of brands in their marketplaces, and that includes on the Internet, as a crucial issue.

I think now, perhaps to address one of the issues that the Dutch lawyer was mentioning before, and one of the problems that we clearly recognize would be the existing structure of the domain name space. That is quite clearly inadequate for commercial purposes in that there are complexities which are promoted by the "first come only served" principle and the very limited restricted opportunity for a commercial name space in either .com or some .co whatever in a country code. And as the Internet is growing up that is clearly becoming inadequate, because you are getting silly disputes such as do you know lighting, do you know ISP type variety. All of these disputes were between companies which, in the real world, have no reason to conflict on the Internet because the domain name space structure is not adequate to fulfill the criteria which I have put up there and which are in the ICC's position statement. I think the fundamental one that we have got to look for is flexibility in the name structure to differentiate legitimate claimants to use the same name but in different trades, and the structure needs to be thought about which can organize that. I am not proposing solutions here, but the sort of analogy one draws is by looking at the way businesses exist in the Yellow Pages categories, for example. And to take the remark that was made by the Judge in the One in a Million case in the U.K., we want to see the structure of the domain name system organized to overcome what is presently an inherent propensity to confuse. You have no idea whether bbc.com is the British Broadcasting Corporation or the Boston Business Computing on the face of it.

Now, I will make a few remarks which are drawing on positions which are covered in more detail in the ICC Policy Statement. I have put them in the same broad categories as the WIPO RFC-2. And the first of the four issues which they have listed is dispute prevention. Here, the ICC is absolutely clear and consistent with the views expressed by {Private Sector Working Group and INTA, that we must have sufficient and accurate contact details and there must be some incentive for people to keep those accurate and up to date. We see no reason why that should not be possible. It’s customary that nobody makes a trademark application without expecting to identify themselves and provide addresses for service and appropriate contact details and the same should apply in the name space. We haven't strong views on pre-payment. There may be some cases where it is possible to justify not asking for payment up-front but at present I think the general consensus view is that payment up-front for domain name registrations would deter a considerable amount of cybersquatting. You have only got to look at NSI’s public report and, I think it was April or May this year, when they openly admitted that 30% of their registrations are never paid for. And certainly when I heard that statistic first, the NSI executive who made it referred to 30% as bogus. And I think if those bogus ones could be eliminated by pre-payment that would be awfully good. Clearly, we have seen in a number of jurisdictions that the courts are consistently taking the view that cybersquatting, cyberpiracy, is not an acceptable practice. And I think there is no reason that the domain name system shouldn't take that on and we would like to see firm provisions outlawing that sort of misappropriation of names and marks. The system should provide an early opportunity for people who might object to a domain name registration to raise that objection. We are not asking for prior checks or prior clearances. That is probably, we recognize, impractical in the circumstances. And we certainly support moves to provide improved directory services. I have been told that I have got five minutes left, so I have to move on a bit sharpish now.

Dispute resolution. Again the ICC with considerable experience in its court of arbitration, recognizes the value of ADR. We support an alternative dispute resolution procedure with a view to minimizing the cost and inconvenience of dispute resolution for domain names as well. However, we are keen that jurisdiction options should be preserved and obviously that recourse must be left to national courts where appropriate. Again, we are looking I think for consistent procedures and that is not just in gTLD registries but it would be nice to see in the ccTLD registries as well. From a business perspective obviously we want it to be timely as well.

On famous marks, there is no doubt that we recognize that they are as under the Paris Convention, as under TRIPS, entitled to appropriate protection. And that needs to be implemented in some way or other in the domain name system. We suspect from a practical point of view that is going to have to be by objective criteria, given how long it’s taken the countries to try and come up with how to recognize a mark in the real world as being famous. You may have to be satisfied with objective criteria, of the sort which have been discussed in earlier ACP guidelines which were perhaps that a mark is considered, not famous necessarily, but widely registered. So, you do it by the number of international registrations or some criterion like that, but that is to be further developed.

On new gTLDs, this again is subject to the stability requirement and we believe that it is very important that proper consideration be given to making sure they are scalable, differentiable and don't simply replicate or multiply the sort of problems we have got today. We want to see a bit more thought given to them, we don't want undifferentiated systems. We want systems which provide the differentiation and can be phased in, and review the impact, which is exactly what WIPO has been asked to do of course.

Finally, I think it is worth looking at the country code TLDs because we do consider that this is an under exploited asset and that they are not presently though, there are some exceptions, not in general particularly adapted to make the best and to exploit therein potential to the best. They could, for example, offer a great deal more of cultural diversity in terms of responding to their own linguistic needs. Whereas you will stop with .com, .net and .org obviously in other countries that is not the language that is familiar. There is a very great difference in procedures. Some are extremely strict and extremely slow, others are very quick and efficient. There needs to be more attention given to that I think. If the ccTLDs were able to make more effective use of their resources it would probably lessen the pressure significantly on gTLDs. And finally, we are not in favor of misleading promotion of ccTLDs as pseudo-gTLDs obviously from the confusion perspective. And so to conclude, the ICC will be contributing a formal response to the RFC-2 in due course and we think it is a very welcome process. Thank you very much.

(Mr. Francis Gurry): Thank you very much Mr. Gymer. So, I open the floor to any observations on what Mr. Gymer has said or any questions that anyone would like, Mr. Abril I Abril.

(Mr. Armadeu Abril I Abril, Legal & Policy Advisor, Nominalia & Council of Registrars (CORE): I would like to ask Mr. Gymer what he understands to be the proper structure of the scalable gTLDs? If he can explain this idea.

(Mr. Keith Gymer): I think I am not trying to offer solutions right now because I think more thought needs to be given to that. But I think we need to look at developing categorization, whether at the second level or at by adding gTLDs which are chartered to meet specific needs in the same way. That was the original intention for example, of .com, .net and .org, but which has not been respected because it has not been enforced and there are no rules requiring that. So, that was a flaw in the system but .com is clearly too narrow to shoehorn all commercial enterprises in. So, commercial enterprises clearly need more structure. Now, what the appropriate structure is, I think is something that needs to be looked into by a deeper study. But that is the sort of thing I am considering.

(Mr. Francis Gurry): Thank you. Are there other observations please. No other comments.

(Mr....................): One little comment about the categorization of specific TLDs or second level TLDs. Anyone who proposes that should get serious input from NSI's experience with trying to keep only network and companies in .net. I am told that it was a very amusing experience, but not terribly successful.

(Mr. Keith Gymer): I think now its probably because there weren't enough categories and they didn't have the backing in the RFCs to implement a strict procedure. They have managed to do it in .edu, .mil., .gov., I don't think it is impossible.

(Mr. John Wood): I would like to follow Abril's thing. I think that there has been amongst us several discussions over having a classification system that is both in the vernacular, modern and therefore intelligible to consumers, but also has legal intelligibility. The gTLD-MoU experience and the seven that were chosen, the issue was also a question of legal intelligibility. I think the fact is that any classification system has to have a vernacular and an intelligible basis that makes it clear to a consumer what that class is. And therefore, when introducing a new gTLD, both at one level so that a consumer can readily understand it, but also from the point of view of a practitioner, they could say, for example, what is the difference between .firm. Why would I have .gov, .firm or dot whatever? So, there has to be an intelligibility both at a common level and also at a legal level. So, for example most people are used to using Yellow Pages, a form of very common classification system, and that offers another opportunity. I know that the WIPO is looking at the fact of expanding beyond 42, because another feature of this is that we have to have a dynamic of recognizing that the world is changing, the way that people and what people consume and how they identify goods and services is also changing. So, I think those things are also in there and that is what is part of this concept of scalability both in terms of the number, but also the variety and the way that they are readily identified. But intelligibility is essential.

(Mr. Francis Gurry): Thank you very much. Are there other observations or comments? If not, I thank Mr. Keith Gymer for the presentation and I would ask Mr. Amadeu Abril I Abril please for his presentation. The ensuing list of speakers, as I have it, is Mr. Paul Kane, Mr. Philip Sheppard, Mr. Willie Black and Madame Isabelle Leroux.

(Mr. Abril I Abril): Good morning. As you may guess from my other introduction, I am anything but a software engineer, as a matter of fact I am a lawyer, and it’s quite unusual for me during these last years being amongst you. Normally, I am the poor lawyer talking to engineers and trying to explain that trademarks do exist, something that they resisted to accept until only a couple of years ago. A second thing is that not only am I a lawyer, I am a complete disaster in technical things, because I am quite short-sighted, so I don't see the screen. Most probably my speech will not be coordinated at all with what you are seeing, but anyway, enjoy it.

The first screen should be something like, you know you will that this day a lot of speakers are lawyers with some training in IP-related things, or someone who represents a registrar’s association called the Internet Council of Registrars and who is also the representative of other associations or a Policy Oversight Committee. This is a process that tries to develop a new system for bringing competition and international cooperation to the DNS system, but also specially, which is trying to bring a new system of alternative dispute resolution to the conflicts between domain names and trademarks. And only this latter aspect is the one I would like to mention today.

As a matter of fact, I would say there are two big chapters, two different sorts of conflicts between trademarks and domain names that are relevant for our interim purposes. One, the classical one should be the one that involves cybersquatters, cyberpirates, in another sense highjacking the trademark owner’s right to get an otherwise legitimate domain name that has been used prior to the registration of that trademark. We have already been discussing today what cybersquatting is. Let me say that probably from a registrar and a registry point of view, trying to deal with these kind of problems is relatively easy, and with some education we should regard most of these discussions as something of the past in let’s say a couple of years. On the other hand, conflicts between otherwise equally legitimated or least legitimated intellectual property rights give an honest living to trademark lawyers. This is not something that the Internet has created, it is not something that domain names have created, it is something that has been around for the longest time. It is something that only has been exacerbated by the globalization of the economy, the globalization of the markets, the globalization of society, not just because of the wide use of domain names, even if this is one of the curious phenomena of what has appeared. I would say that these kind of issues are much more difficult to the rest from the Internet side. It is more difficult to have registries and registrars and alternative dispute resolutions solving these issues. I am not saying it is impossible. Before I arrived I spent three quarters of an hour flying around and then I spent something like one hour in a nice traffic jam. That surprises me, because when I left here 10 years ago I never encountered a traffic jam. I hope that some basic descriptions about the impossible equivalence between the trademark system, the domain name system, the different users, the different logics and the different personalities of this systems prevents simple marking between them. What I would say, is that the real problem about conflicts between equal and legitimate intellectual property rights matters is the jurisdictional part of it. You have trademarks all around the world, you have courts all around the world, you have lawyers all around the world, you have domain names that are registered here or there but, anyway, operate everywhere in the world. So, you have very many conflicts, because probably the registry licenses one part, and you have registered the domain name somewhere else and your site in a third country and the trademark is in a fourth country and the challenger is anywhere else. So, this is really the most difficult part of solving this kinds of issue. But this is why alternative dispute resolution and a uniform alternative dispute resolution system is most useful. That is not as a substitute to courts, because that is impossible, it’s legally impossible, its substantively impossible and it is not desirable. Indeed, providing a useful, let us say cost effective and time effective, alternative to that will most probably be the only way to solve the impossible jurisdictional situation we face in these kinds of cases.

My message here is, we have been discussing on these issues, I am just imagining loads of familiar faces here again, I hear many other familiar voices here, so these kinds of issues have been discussed for a long while. And one of my objectives is trying to make sure that we don't waste all our efforts, all the intelligence that has been put into this process - wo that we don't start from ground zero and we don't try to reinvent the wheel, because we don't still have the solution. But we do know that some solutions cannot work, and we know that we have found some very good ideas. We have history behind us, we have the White Paper, we have the Green Paper before that and we have a strong feeling, especially in America, that we will assist in an international system that guarantees that the resulting system will not be relying upon the laws and the rules of any single country in the world. Imagine which one?

I would now like to spend some time explaining. What we are doing here is trying to answer RFC-2 from WIPO. And in RFC-2 we have four different parts. First, dealing with the need or not for a uniform dispute resolution mechanism, a uniform way of solving conflicts . I would prefer leaving that latter part for a later discussion. Now I would like to concentrate on the preventing and solving of conflicts, what we can do, and what we cannot. Then we have the problem of adding new gTLDs and protecting famous marks. Let me say a few words on these two latter things, that I will not develop later. Protecting famous marks, as Keith Gymer has mentioned, in our system the so-called ACPs, Administrative Challenge Panels we propose several rules trying to protect a famous trademark. Basically, the owner of a famous trademark will be able to prevent anyone else from registering the domain names, by asking that, the registration is closed for anyone else in that given domain name. Keith Gymer said we need objective criteria to be able to do that. But here is one of the places we have a source of problems. Registries or registrars are not created with the mandate of any national jurisdiction and they cannot really take decisions on legitimate rights. They can just say what is in the database and what is not, that is all they can say. They can accept registrations or refuse for good or bad reasons or with no reason at all. But they cannot really settle rights. The problem is that even if we have some texts now, for example TRIPS regarding famous trademarks, we still don't have an internationally accepted definition of such trademarks. Trying to create these objective criteria has proven very difficult. For instance, Keith Gymer mentioned having some kind of wide registration and use, for example, Harrods, I think only has presence in one single country in the world, so, they will never meet this criteria of wide international presence. But, I would say that if ever we have .shop, .store or something like that, Harrods will be the first to claim that harrods.shop should be owned by them and nobody else. So, it is really a sticky question, it is quite difficult and for that reason we have a group at WIPO studying the issue now. The problem is that we can just wait for WIPO and other groups to develop sensible rules on that. But, you know the path of the Internet perhaps means that we should delay finding a possible solution to the DNS restructuration until the day that everyone has agreed on what a famous trademark is, especially from a legally acceptable point of view.

Regarding the addition of new gTLDs. Yes, we are in favor of adding new gTLDs. This is our business and our system was built for introducing more gTLDs. The current structure cannot allow the hundreds of thousands of millions of enterprises, people and ideas out there that want to be on the Internet and won't probably have a domain name. And we cannot simply say that we can live without new gTLDs or new TLDs without doing anything at all, with just maintaining the status quo for lets say five or six years until we find a solution. But the most important thing is, as I said, we have conflicts, we want to prevent the conflicts and we want to solve the conflicts.

As I said this morning, in this traffic jam you have a car and you go the way you want in the street, then you find that there are other cars going there and you still can go the way you want. When there are too many cars you have conflict because all of them want to park in the same place. You need some rules, you need some help. You need to either decide that this is a wild life and the strongest win, or you need some rules to prevent some of conflicts. We believe that rules to prevent conflicts are useful. We believe that we can prevent some of the conflicts, though we cannot prevent all the conflicts. As long as we have cars we will have car accidents. The idea of that we can prevent car accidents by simply outlawing cars is socially and economically unacceptable, even if feasible. So, we can try to prevent conflicts by putting up traffic signs, red lights and trying to educate the people. But, as I said, you cannot prevent all the conflicts. For instance, one of the things that the WIPO RFC-2 asked, was about requiring data from the registrant, the one that registers the domain names. This is something in the Appendix C of the CORE-MoU, whereby each registrant has to provide all this data, and a sub-set of this data is made public. For instance, we don't believe that the fax numbers and telephone numbers of individuals who register domain names should be widely available in the Internet. What happens if this information is not correct? Well, our position is that it is for the registrant to provide the information in good faith. These are the traffic signs. If he follows the signs, no problem. If he prefers to park where he is not allowed, if he does not give for instance an e-mail that works or if he provides a non-authoritative service, then we simply feel allowed to cancel his domain name, because he has not followed the rules and he most probably will create conflicts. As soon as somebody says, well I need to go that way but there is a car there that is parked in the wrong place, we feel allowed to remove that car. Then again, we cannot prevent all the conflicts. Even if you put really bothersome pre-registration criteria asking the applicant to tell everything. First, the registries and registrars are trademark officers, they have no right to decide on the rights of the people. And then, imagine how they could assess what the registration of a business in Momolia really means. They can accept the paper and the translation, but they really can't know exactly whether this is a fake or not. Asking for full disclosure makes registering on the Internet more costly than registering trademarks. And, this goes against the logic of the economics of the Internet. This goes against the logic of the success of the Internet, the reason why we are up here now. So, we are not going to solve all the problems. But in case we have accidents, we need an ambulance. There are accidents and somehow we have to deal with the accidents. We absolutely need alternative dispute resolution, and this cannot be a traditional reiteration, because in some countries, mandatory arbitration of intellectual property rights is not common. So, we have to provide for all those systems. A good one example, for instance, is cybersquatting. In our proposed system, we submit them for public consideration. We have a rule by which if someone offers a TLD in exchange of money, there is a presumption he is a cybersquatter. There is another presumption that if someone has domain names that match exactly or with a minimum of typographical differences with intellectual property rights to which he has no claim, there is a nonrebuttable presumption that he is also a warehouser or a cybersquatter. And all these domains can be erased at once and not only that, but he can be prevented from entering the database again, and from registering the domain names. These are simple rules that can be refined, , but these are the kind of things you do when you have crisis. Again, let me say in finishing that I agree with what Keith Gymer said, that in order to prevent accidents we need better highways. We need to structure better the traffic in the Internet. We need more structure of TLDs. How? For instance, the Nice classification that has 42 international classes. Most of those names will fall in two or three classes under the international trademark classification. So, we need to reinvent something, and we won’t probably do that by next week. But meanwhile we need something, because if not, what we are doing is trying to prevent accidents by putting the cars off the street.

(Mr. Francis Gurry): Thank you Mr. Abril. Are there any observations or any questions for Mr. Abril?

(Mr. Paul Waterschoot): Yes, I just want to emphasize one particular point which was presented by Mr. Abril and we found this issue in other regulatory issues on electronic commerce. And that is the issue of transparency. You can, those of you who are familiar with design protection, know the problem of look-alikes. And I think that we have a single problem here, that you have different products in the market which look very much alike and we are worried about consumers not knowing who they are addressing and who they are confronted with. But I think that with rules of transparency you can very much avoid this problem by giving additional information on the sites which explains who the entity is behind the trademark, which might be similar, or the domain name which might be identical but which might be of another domain. It might be national or it might be another and you can, by imposing rules on transparency, you can ensure that no confusion will result. And I think that this is something which links to what I said in my introduction, that one should try to prevent conflicts and through transparency you can certainly do this.

(Mr. Abril I Abril): It does help, it does not solve the problem but certainly it does help a lot.

(Mr. Francis Gurry): Thank you very much. Are there any other observations or comments?

(Mr. John Wood): Bearing in mind the difficulty of coming up with an objective criteria for famous marks, would you be adverse to the idea, for example, on a more consensual basis? You used the word Harrods, for example, there are other regional trademarks that ensure a famous goodwill or well known name within a certain region by developing a database that had that. In RFC-15/91 one of the things that was said in that area was that the registry, the registrar function, should not have any role in this. But simply the inability to access a database that did have an accepted group of famous marks that were the nature of say, Harrods, as well as ones that had a wider review in terms of the registrations.

(Mr. Francis Gurry): Mr. Abril any observations?

(Mr. Abril I Abril): No, again I agree and again I do stress there is nothing that the registries or the registrars can do on their own. The trademark community and the national jurisdictions have to help building that. And again we have a problem with time-matching, because the way that intellectual property treaties develop and the way that the Internet has developed is very different.

(Mr. Francis Gurry): Thank you. Yes, Mr. Gymer please.

(Mr. Keith Gymer): Just a brief remark by way of clarification, but I wanted to make it clear that certainly from a business perspective we weren't proposing adoption of a mapping from the trademark classification. That is the last thing which is appropriate. I am sure if you are starting with a new trademark system, you wouldn't start with 42 classes now either, so I think that needs to be looked at in the light of the different environment, the different medium that we are in and the structure needs to be thought out on that basis.

(Mr. Francis Gurry): Thank you.

(Abril I Abril): I know that. One thing regarding the structure of TLDs is very difficult to enforce, I mean we have a very good idea, but then the market goes another way. It has been shown by .com, .org and .net, these three TLDs that people know, the market goes one way, the present rules go in another way and the enforcer was unable, probably unwilling, but certainly unable to enforce them. We have to think about that when we develop these kinds of highly structured systems. Because we may be exporting the problem to other TLDs that choose not to behave that way. Probably ccTLDs that behave in a different way. That was all.

(Mr. Francis Gurry): Thank you Mr. Abril for your presentation. Before introducing the next speaker, may I also introduce Mr. Geert Glas whom I mentioned earlier on this morning and who has now joined us on the table. He is the Chair of the INTA Internet Sub-Committee. May I ask Mr. Paul Kane please to come to the table. Paul Kane is known to many of you. He is the Chair of Internet Computer Bureau and he is known in particular for many of the innovations that he has introduced in the administration of one particular domain, namely .io.,

(Mr. Paul Kane, Chairman, Internet Computer Bureau): Thank you Francis. Hello, good afternoon to you all. First of all, if I could go back a little further, I first entered the electronic market way back in 1982 with a new DI system which was subsequently bought out by Reuters in 1986. My area of specialization is predominantly electronic commerce. One of the conditions of the purchase of my original company was that I did not get involved in electronic commerce for a period of five years. I have since reentered the market and I am now sitting on a number of company boards, three of which are international, two of which are Assamais and I am basically here today for two other companies with which I am associated. One of which is a not for profit system, the Internet-One and the other one, as Francis introduced, is ICP.

I would like, if I may, just to go through the RFC-2 and outline my various comments. Just for clarification I would like first of all to describe my understanding of various terms, specifically of the registrar and the registry. The registrar in my view can either be the agent of the registry or can be the agent of the applicant. Inter ICP runs, on behalf of three national governments, the ccTLD registries. It would in the near future be actually running a fourth ccTLD and I am looking at this very much from a registry perspective, my background obviously being in the technical environment. My understanding of the registrar is as an agent of the applicant, though some registries consider a registrar to be agent of the registry. So, I just thought that I would clarify my understanding there. A registry is fundamentally a database provider that makes entries in the DNS with which you are all familiar. And a DNS can be run in a number of ways. It can either be a top-down system or it can be a myriad system. At ICP we run on a myriad system, which means we have multiple primaries distributed around the world from which secondaries are fed the information. Our primaries are currently located in the U.K., Amsterdam, New York, Tokyo, Melbourne and we will soon be introducing one in San Francisco. And so the relationship that we as a registry have is one of contract, simply because we have our DNS service well distributed. So we have a contract between the applicant and ourselves irrespective of how or by what means they registered the name. So, they can go to a registrar or they can come to us directly. (end of tape)

So just turning to point 14.1. I, unlike Abril, basically think that all information should be available through a whois server, that does include phone number, but does include fax. Because if someone is infringing someone else's rights there needs to be an effective means of communication. The application process that we provide basically confirms that the applicant has a valid e-mail address. And the scenario there is, the moment we receive an application we send the contract via e-mail to the applicant, who has 14 days in which to read the contract and to challenge effectively the contract. If they challenge the contract within 14 days, we will refund all moneys to them, and they have only to pay a part of the registration process. We refund all moneys to them and the domain name registration is made nul and void. We do not require any certification before a domain name is allocated, simply because it is very difficult for us as a registry, as a technical operation to determine the validity of that certification. In our contract it is very well laid out that the applicant is submitting themselves to a certain dispute resolution facility, but is not saying that we are excluding national courts. We recognize national courts. but in addition we have an alternative dispute resolution facility which, as it happens, is administered and facilitated by WIPO. But when we were designing the contract we did consider a number of other facilitators of our alternative dispute service.

Moving on to 14.2, with regard to false claims or misleading information, we place a duty on all applicants to supply accurate information. If they fail to supply us with accurate information we reserve the right to cancel the domain registration. Every applicant is entitled to modify their details on line. Each applicant selects a password which is associated directly with the domain registration, so there is no excuse for the applicant to supply us with false information.

On 14.3, the desirability of imposing waiting periods. We do not impose a waiting period and with the experience of .uk when they had the naming association before the creation of Nominet, there was a potential for name allocation to be abused. We do, as I mentioned, initially give the applicant 14 days in which to review the contract and if it is not to their liking they can reject it. As to the desirability of suspending names until payment is received, we will only enter names into the DNS if payment has been received. No payment, no name basically. That is part and parcel of the contract that the applicant is entering into when they deal with our registries. As to the desirability of certain trademark searches to be undertaken prior to a domain registration, that is not one of our requirements simply because we are not in that business and we wish to try and keep the role of trying to resolve disputes to the experts. We are simply technicians providing a database facility.

As to 14.7, I am going to actually link it if I may with 14.8 which is another aspect of the portfolio with which I am associated, and that is the possible use of directory listing services, gateway pages or other methods aimed at avoiding trademark and domain name conflicts. If one looks at the Internet from an electronic commerce perspective, one knows of a company in the real world by name, address, telephone number even. What we have done at DNS level in a system called Internet-One, is basically take a telephone number and map that phone number directly to a URL, directly to an IP address, or we have a facility where you can enter, register the trademark associated, or the trade name. It does not have to be a registered trademark. And we can map that to a URL or IP address. If, multiple companies share the same name, in the case of United for example, the scenario there is that the system automatically becomes a directory service. The first one you electronically map directly to the unique site, but if there are multiple entries it is no longer unique and in so doing we enable the user to distinguish between companies by descriptive text. The descriptive text along with all other data can be amended on line so if inadvertently there is infringement the applicant is empowered to modify their information on line. I can go on more if you wish but in the interests of time, I will press on.

As to 14.9, the desirability of encouraging ccTLDs to adhere to policies regarding to intellectual property issues. ccTLDs are very proud of their sovereignty. And I believe any attempt to try and detract from the sovereign nature of ccTLDs will be an uphill struggle.

With regard to dispute resolution, just moving on to 16.1, yes we are very much in favor of alternatives to standard litigation and we encourage any applicant/registrant/claimant to use this ADR, we use arbitration. Now, we have for all of our domains that is Internet-One and the ccTLDs we administer, an online dispute resolution service which is facilitated by WIPO, as I mentioned. The URL, should you wish to go to that site, is wipo1.wipo.int and there basically the claimant can register their concerns against a specific registration. And we will warn consumers that a specific domain name is in dispute. One thing we do not do, we do not get involved in facilitating a resolution of the dispute. As I have mentioned we are technicians predominantly.

As to 16.2, we do not believe registrars who, as I have mentioned, we believe to be the agents of the applicant, should be party to a dispute where they have acted in the interests of a genuine applicant. And so therefore, we effectively take registrars out of the frame by sending to the applicant the contract and also a bill which has to be paid. If the bill is paid by the registrar, then we still need the contract returned to us by the applicant. And if the domain name infringes the trademark of a third party, it is the applicant rather than the registrar who is doing the infringing. There have been instances, and you probably are all familiar with them, with registrars registering names on behalf of clients and holding those names for those clients, but they are effectively dead registrations. That is something we do not encourage. Simply because it is very difficult for us as a registry to be able to determine what is a genuine registration on behalf of an applicant and what is a speculative/cybersquatting opportunity by the registrar. In such instances, we effectively place the registrar on notice that we are aware of such activities and basically take a cease and desist approach. With the cease part being that we will not recognize that registrar if they continue in that activity. The appropriate extent of registries’ involvement in domain disputes as I have mentioned is that we don't get involved. There is possible involvement of other dispute resolution authorities administering a dispute. Basically, we are running ccTLDs and whilst we have an open-door policy, applicants can come from anywhere. We did not want to have a scenario where we had a closed environment and residents of the countries that we administer being used as P.O. boxes. It makes things very, very untidy. And so, we are open to any recognized dispute resolution authority assisting both the applicant or the claimant as the case may be. We, in that instance will effectively wait for a directive from or an agreed settlement from both parties. The desirability of providing suspension of names; we do not encourage the suspension of any name without good reason. And in our view it is better that there is an expedited procedure to come to a determination as to whether or not a domain should be removed, rather than making an off the cuff, as it were, decision as to the validity of any party’s case. As to the desirability where domain names remained unchallenged during a certain period of time. Basically as I have mentioned we are technicians and, if we were to say that someone has obtained rights because they have been in the name space for a period of time and therefore they can remain definitely, we as the registry would be hauled straight up in court. So, basically we do not get involved, it is between the claimant and the registrant to determine how to resolve their differences.

Famous marks. For example, if we take amazon.com, Amazon the name is for some unknown reason registered in all ccTLDs. Now, if one is wanting to contact the book shop amazon.com, you will use the domain amazon.com. I see no benefit in Amazon effectively registering in all ccTLDs. Because what they are doing effectively is blocking out potentially other legitimate companies who have a right to trade under the name Amazon from their national TLDs and possibly the new gTLDs. So, that is one scenario. With regards to having a list of famous names, there is possibly merit in having a list but rather than having it done on a registered trademark basis, possibly it may be worthy of consideration to be done on the value of a trademark. It can be determined, rather than some subjective perception, such as Harrods has a turn over of x, it is above a certain threshold and therefore it may get on the list. If one were to fix the number of names that are on the list to say five hundred or a thousand or a fixed number, there would be trademark holders I wouldn't say fighting, but agreeing amongst themselves as to who should be on the list. So, a factual threshold would be beneficial. And I would try and encourage a movement away from large companies wanting to register in all top-level domains because it serves no purpose other than to effectively extend the need for more and I mean significantly more gTLDs. And I am unsure, unless there are hundreds and hundreds of new gTLDs, of the merit of extending the gTLD base significantly. If a directory system were to function such as the Internet-One, the consumer can be ensured that the legitimate party is identified to them in the real world as the same one known to them in the virtual world. The Internet-One system has actually very recently received a Group of 7 Industrialized Nations' support or endorsement. There will be an announcement at Ottawa, at the Electronic Commerce Conference for Ministers being held in October 7th - 9th, and they are seeking to place the Internet-One project as a test bed for the secure foundation of electronic commerce. Our role is predominantly to fulfill two criteria of electronic commerce - fundamentally identification, authentication and transaction. We, in the Internet-One system can deal with the first two. There are thousands of authentication techniques out there and we are effectively interfaced with the majority of them. The technical aspects of Internet-One are present, but we have focused more on a user-friendly interface. So, all one has to do is type in an address line of a standard browser, the trademark and followed by .io and you are automatically transported either to the listing page or directly to the web site relating to the trademark. And that is about it I think. Thank you.

(Mr. Francis Gurry): Are there any observations?

(Mr. John Wood): I would like to say that the fact that trademark holders do register either in new gTLDs or in ccTLDs does serve a purpose. The fact is, it is the protection of the mark and another reason why when new gTLDs are introduced, it is not necessarily going to mean that others are going to have an opportunity. Because trademark holders feel compelled to protect their mark against either infringement or dilution. So, wherever that eventuality may arise, it beholds them as a matter of due diligence to actually protect them. And that is the basis of the huge burden of policing that is upon trademark holders. So, it does serve a very important purpose and anyone that says, okay let’s introduce a new gTLD, should know immediately that the first people that would be clamoring, even if their resources are being stretched to the absolute limit, will be trademark holders. Because the issue of dilution and the issue of infringement is a very real one.

(Mr. .....................): I agree with you John, however the point is that the more incentive the trademark community has to register new gTLDs, the more gTLDs there will be and the more confused the consumer will become. If one had the trademark holder registered just in one top-level domain, be it a national domain, be it a generic domain, then this whole hype of trademark holders having to get into each gTLD and the Internet community saying we need more gTLDs to accommodate it would tend to subside, in my view.

(Mr. Francis Gurry): Mr. Keith Gymer please.

(Mr. Keith Gymer): Yes, I want to pick up on a couple of points. Firstly, to endorse what John Wood said, that I think the reason that Amazon registers worldwide is because of the lack of differentiation in those other gTLDs or TLDs, and the potential for confusion. If they, for example, had amazon.books and amazon.cars, I don't imagine they would have any need to register in .cars, but that is the point I was making earlier on. And the second point is in relation to your remark about the sovereignty of the country code TLDs. I think that is fine in the case where they are operated according to the original intention, which was that they are in a privileged position of being given a TLD on the basis of the ISO.3166 country codes as a geographical designation. And I think, provided that is respected, I don't have an issue with it. And where I do have an issue and I think it is a much more dodgy case, is when attempts are made to exploit those supposedly country code TLDs as pseudo gTLDs and their relationship to the country and the sovereignty is completely lost, or is being used in a misleading and confusing way. And I think that they must be highly questionable in those cases whether that is a legitimate use.

(Mr.......................): Yes, I agree with a lot of what you say. The problem with ccTLDs being used as gTLDs is frequently that a number of the governments of these small, in fact they are not small, ccTLDs, about 90 in total, have an open door policy. With a national asset being available to all and being used in a way that it was not intended by RFC-15/91, that is, for the benefit of the residents. There is also a problem in so far as if trademark holders are going to register in every ccTLD, then they are becoming less national and more generic and there are parties up there that are cashing in on that source of value of the ccTLD.

(Mr. Francis Gurry): Are there any other observations or comments, questions? Yes please Mr. Alvestrand.

(Mr. Alvestrand): One comment about the situation where the law on trademarks requires that in order to show due diligence so that your trademark is protected you have to go through this silly exercise of registering in all places. It might be the case that in that case it’s the national law that is being silly and should be ignored.

(Mr. Francis Gurry): Other observations? Paul Kane thank you very much. Perhaps if I may ask you one question, because you have some practical experience, which is interesting. You mentioned that you are using the ADR procedures administered by WIPO. Have you found as a practical matter that there are any applicants that have objected to the existence of ADR procedures associated with the registration?

(Mr. Paul Kane): It is difficult to determine who objected to the idea, but I will come clean for Keith's benefit. There have been some applicants in the .oc domain who have been sent the contract and having paid their money, because that is how they get the contract, who have decided not to continue with the application. Whether it was the ADR, whether it was the type of nature of alternative conditions, I don't know.

(Mr. Francis Gurry): Fine. Thank you very much Paul. I believe that with your indulgence we have time for one more speaker before lunch and that person is Mr. Philip Sheppard, who is the manager of Branding Affairs at AIM European Brands Association. Mr. Sheppard please.