WIPO Internet Domain Name Process

Transcript - part 1: Budapest regional consultation

Hungarian Patent Office
October 22, 1998

(Mr. Mihály Ficsor, Assistant Director General, WIPO): Good morning ladies and gentlemen. It is an honour for me to open the programme of the third day of the Symposium. On the first day we had a general overview on the impact of the Internet and electronic commerce on intellectual property protection at the international level and in the various regions and countries. Yesterday, we focused on two specific issues. First, the so-called Internet Treaties, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, and the other issues of the protection, management and enforcement of copyright and related rights in the digital environment. And then in the afternoon on the new WIPO project, the establishment of the WIPO Nets and the digital library on intellectual property. And today, we concentrate on the most important issue in the field of industrial property, namely the interface between Internet domain names and trademarks.

We know very well that the governance of the Internet, the organization and management of the domain names system, has been the subject of very intensive discussions all over the world during let’s say the last two years. And these discussions have been motivated by the desire to ensure that the management of the domain name system is institutionalized in a manner which will permit it to accommodate the growing traffic on the Internet and also that this system be administered in an open way, in a way that takes into account the interests of the different stakeholders, and in a way also that the views of the different countries should be duly taken into account. One of the most important issues which has been discussed during the last two years and particularly during the last year, is the interface as I have said between these two systems, the domain name system and the trademark system. On the first day we had a general discussion about that. We described what differences, what possible conflicts exist between these two systems. And we also spoke about the phenomenon of cybersquatting. The most recent development or one of the most recent developments in the discussion on the future organization of management of the Internet Domain Name System, is the publication of the Statement of Policy on Management of Internet Names and Addresses by the Department of Commerce of the United States of America, the White Paper. This White Paper contains the following passage relevant for the consultation meeting which is to take place today.

"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 first, 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. Second, recommend a process for protecting famous trademarks in the generic top-level domains. And third, 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 top-level domains and related dispute resolution procedures on trademark and intellectual property holders. These guidelines and recommendations could be submitted to the board of the new corporation for its consideration in conjunction with its development of registry and registrar policy and the creation and introduction of new top-level domains".

WIPO has received indications from the various countries and also from the European Commission about support for this Process indicated in this White Paper and WIPO was happy to undertake this Process which is taking place in two different forums. First, through the Internet and second, through the organization of these kinds of consultations in what is referred to sometimes as the 'meet space'. The idea is that as a result of these consultations, in March next year a final report will be published which contains all the possible options and proposals.

Today, as the programme indicates, we will discuss these issues in the form of a consultation meeting. And this meeting today will be moderated by my colleague, Mr. David Muls, who is the Senior Legal Officer of the Electronic Commerce Section, Office of Legal and Organization Affairs in WIPO. We have three outstanding experts who will participate in the consultation and the discussions. Mr. Ken Fockler, former Chair and President of the Canadian Association of Internet Providers. Mr. Geert Glas, Chair of the INTA Internet Sub-Committee, he is from Belgium. And Mr. Donald Heath, who is the President of the Internet Society in the United States of America. I give the floor now to Mr. David Muls who will make further introductory remarks and will moderate the discussions today.

(Mr. David Muls, Chairperson, Senior Legal Officer, Electronic Commerce Section, Office of Legal and Organization Affairs, WIPO): Thank you very much Mr. Ficsor. Ladies and gentlemen I proposed that we divide the day in two parts. The first part would be a very short part, and the second part would be a longer part. In the first part we would give you a presentation on Internet domain names and trademarks and the events that have taken place over the last few years that influence that discussion. And in the second part, we would actually start conducting the Internet Domain Name Process, the consultation process. I should stress that the consultation process is a process by which WIPO seeks views from you. So the goal is very much in that second part that the audience speaks. Our goal is to gather information about your opinions about certain issues that are raised in this Process. So, hopefully you will participate actively because we do not intend to make very long statements in that second part of the day, simply because we are collecting information and our recommendations will be based on your views and it would be premature to at this stage to take any final views on any of the issues that are to be addressed.

Now, we will turn to the much more important part of this day, where we would involve the public in the debate and where we would actually start the WIPO Internet Domain Name Process. Before we actually invite the public to speak, I would like to give you some additional details about the characteristics of that Process and what it is all about. The goal of this Process is to formulate recommendations on certain intellectual property aspects of domain names including dispute resolution. Those recommendations are to be submitted to the new corporation that is to manage the DNS. We are not creating any law, this is not a binding proposal, it is a set of recommendations. And the recommendations are to cover four main areas. First of all, how can we prevent disputes arising. Second, how can we most effectively resolve domain name disputes. Thirdly, whether there should be any special protection for famous and well-known marks and, lastly, what is the recommendation from the point of view of intellectual property. And I should stress that this is only part of the reality that the new corporation will look at. What are the recommendations from the intellectual property point of view with regard to the introduction of new gTLDs.

One of the salient characteristics of this Process is that it is open. Which means all interested parties can participate from the public sector and the private sector and we actively encourage and we have put quite a lot of effort in trying to encourage persons from the trademark community, from the technical Internet community and from other communities, including people who are referred to as "public interest," people who represent free speech use etc., to participate in this Process. Because we want to receive as many views as as we can so that the recommendations are as solid as possible. A little footnote, this Process is for an international inter-governmental organization like WIPO, quite a novel approach. Because traditionally we would talk principally with the Member States, and in this Process we obviously do talk to the Member States and we consider their participation to be critical, but we do not only talk to the Member States because any individual, however small an interest he has in the Internet can participate on an equal footing. And just as a side note, WIPO has worked hard to make everybody feel comfortable about this process and I think we have succeeded in doing that and this is I think illustrated by the fact that the Member States in September approved the Process.

Now, when we say that this Process is open what does that mean? How is it open? How do we achieve this? Well, basically it is based on Requests for Comments. That is to say, we issue documents where we basically ask people to say what they think about the issues. And those documents are called Requests For Comments, and people can comment on them and on the basis of those comments we proceed to the next stage. There are three Requests for Comments foreseen. The first was on the terms of reference, and was issued in early July 1998 and the goal of that document was to define precisely what issues we would like to address in this Process. On the basis of the comments received we issued in mid-September 1998 WIPO RFC-2, which is the one that we will talk about today, which defines the issues that needs to be addressed and through which we ask the public to comment, and to give us their views on the various items that are outlined in there. We intend to issue in mid-December 1998 an interim report. This will be I think a very interesting report and probably will elicit quite a lot of debate. This is something to look forward to and according to the current planning this will be issued in mid-December 1998. That RFC-2 will also be posted on our web site, people would be able to comment on it and on the basis of those comments we will issue a final report in March 1999. This is quite an accelerated process, which is not easy for an international organization to achieve within the time-frame foreseen. But I think until now we have been relatively successful in keeping our time lines.

It is an important feature of the Process that we are assisted by a group of experts. This is one of the key characteristics of the Process, we have 15 experts and there is a document at the end of the room which lists all the persons involved, and the basic goal here is to have the experts to assist us so that they can advise us on the points of view of the different sectors that they represent. The experts generally speak from three sectors, the trademark community, Internet technical engineering community and the other communities such as public interest and we want to make sure that when we draft these recommendations that we have people who know very well what they are talking about in those respective areas, so that we are as close to the mark on many of the issues as possible. As Mr. Ficsor explained we have the honour of having three of our experts present today.

Now, how would people participate? They can participate by various means. The first method is to submit written comments on the RFCs through our web sites. There are forms that allow you to comment on the RFCs that are posted. And the second way to participate is through the physical regional consultations like the one that we have today. We have foreseen two rounds of consultations. The first round in the months of September/October where we go to 11 locations all over the world to allow people to participate in the Process. And we foresee a second round in January-February based on the interim report, probably in a smaller number of locations to allow people again to submit their views on the interim report. This whole Process essentially is managed through a web site that is available at the following address: http://wipo2.wipo.int. The basic information on the web site is the following, there is a time-table saying what the different steps in the Process are. There is a page for the consultations and registration forms to participate, there are reports for each consultation, we write a brief report with a list of speakers, there will be a written full transcript of every regional consultation, and something that I find very attractive, we will also have audio files for each of the consultations and these are already in place for the San Francisco, Brussels and Washington regional consultations. If you have the appropriate software which you can download free from the Net, you can actually listen to what people have to say, it is all very open and transparent.

Another major element that is obviously present on the web site are the Requests for Comments. And you can read all the comments received also for the previous Requests for Comments. The experts are there with their CVs, basically all the information that is relevant to the Process. The Process is conducted in three languages, English, French and Spanish. In terms of registrations to participate in the Process up to now we have 750 individuals or entities that are participating. They haven't all made comments, but 750 persons have indicated an interest to be informed and to participate in the Process from over 65 countries.

I hope this has given you some idea of what the Process is about and I think we can now turn to you, if I may say so. We would like to obtain your views on four major topics. How do you think disputes are best prevented? How do you think we should resolve disputes if they cannot be prevented? Do you think it would be desirable to have special protection for famous and well-known marks and, if so, how do you think that protection should be put in place, and finally what are your views on the introduction of the new gTLDs? I don't know how many of you had the opportunity to read in detail WIPO RFC-2, because we should try to focus the discussion as much as possible on the issues specified in that document. There is room for going beyond obviously but the goal should be really to try to stick to the issues there and not to go on too many tangents. And in the previous consultations that we have had we have approached it like this. We have invited a person to speak, that person made a statement. After that person has made the statement we invited the panel to ask questions of that person to dig a little deeper into their views and then we turn to the public to see whether the public had any questions before open discussion about the issues. When that open discussion was finished we moved on to the next person who wanted to make what we call a formal presentation. Basically I would ask any person who wishes to make a formal presentation to stand up. Please when you speak state clearly each time you make an intervention your name, your position and your organization because we are recording this hearing and this will be reflected in the transcript. So, can we have the first speaker please.