WIPO Internet Domain Name Process

Transcript - part 4: Washington, DC regional consultation

Georgetown University
October 1, 1998

Ms. Cade: I turned it off, I did not just delegate responsibility for answering it, although I did think about that. I am particularly pleased to be able to offer comments. My name is Marilyn Cade, I am the Director of Internet and e-commerce advocacy for AT & T and I am making comments on behalf of my trademark attorneys, Frank Palletano and Michelle Fiber, who are most actively engaged in dealing with the implications of trademark and domain name disputes. First of all, I want to say, like many before me have said today, how much AT & T appreciates the fact that WIPO is engaged in undertaking the global consultation on Internet domain names issues and I might also say that I applaud the individuals who have accepted the invitation to be experts in this particularly interesting, but perhaps controversial, area of exploration. We look forward, as a company, to continue to engage in this dialogue. AT & T is involved in the issues involving the conflicts between trademarks and domain names for a number of reasons both because of our own concerns and also because of the concerns that we encounter as a major supplier of services and products and infrastructure for the Internet and e-commerce. As a part of that interest, we are a part, with several other companies, including Bell Atlantic, AOL, Microsoft, Viacom and I am missing a few others, Merotech, Warner Lambert and a few others, with a group called the Private Sector Working Group who has previously responded both to the Green Paper and the White Paper and also to WIPO with comments. I would refer anyone who is interested in AT & T’s specific comments to our comments on the Green Paper and the White Paper and my comments here today will highlight some areas of particular concern and interest.

But, first of all, a few facts about AT & T. We do business in over 220 countries. We are a very well-known brand and we rely on our brand to help consumers and business customers find us. There are over 80 million consumers who rely on the AT & T brands and service marks to find us and they rely on the trust and integrity of our products that are behind that brand. So, to the point of the question that was asked earlier, that Griff asked, I think, about whether trademark holders might feel that it is OK to separate the brand from the path to find the brand; I would say, for my own company, with the amount of investment we have in our brand and ensuring that we build identification in that brand, not just domestically, but also internationally, that that is a really risky separation for us and would have to be very closely examined. I understand the interest in raising the question of are there other technological solutions, such as gateway pages, are there enhanced directories? Are there other perhaps enhancements to browsers and to search engines that could be developed that would sort of make it so easy for the consumer that all they would to is type in "find communications services," "find ISPs," that that is not what either physical business nor do we believe, what electronic commerce, business will be built on. We think it is going to continue to be built on the recognition of businesses and consumers with the brands they recognize in the physical world. One more word about my company, we do not believe that consumers and businesses will only do business in either the physical world or only in the virtual world. We believe that what we are seeing in the Internet and e-commerce is an addition to an augmentation of the way that consumers and businesses access information and engage in transactions and, for that reason, we believe that the same expectations that consumers and businesses have in the physical world need to be available to them in the virtual world. We protect not just our trademarks but also our service marks and that is of relevance because I am going to talk about some of the examples of the kinds of problems that we are encountering. In our view, and many here today have said this and I think we have evolved to the point that generally we all agree with this, that brand marks are like road signs to consumers and that consumers look to the brand marks that they recognize that indicate to them quality and consistency. We also believe, and although this may not be specific to the trademark exploration at WIPO, I think Francis, generic to other examinations................... ................ that the same sort of expectations that we are seeing that we must provide in the physical world, such as ensuring that when a brand is infringed or when consumer fraud exists, or when a consumer’s trust is violated, there is a path to resolve that. We think those same expectations need to be provided in the virtual world. I know there has been extensive concern expressed about crowding in the existing name space and about the need for new business opportunities to introducing new gTLDs. In the AT & T filing on both the Green Paper and the White Paper, what you will see is that we have expressed strong reservation about the introduction of multiple simultaneous gTLDs until there are adequate safeguards. We have suggested that it is possible to introduce two or three, with strict guidelines and to perhaps examine the kinds of problems that develop in that introduction and to then use that learning to reach the next stage of rules for operation within the introduction of other gTLDs.

I want to talk about a couple of specific examples of why we are so concerned and I believe Sarah Deutsch from bell Atlantic brought in an Exhibit earlier which indicated the volume of the kinds of problems that commercial holders are experiencing. Certainly, any of us who are engaged with the PSWG or who are large commercial stakeholders, could supply the same sort of documentation and it is indeed a growing problem. I know that there has been an assertion that there is no evidence that there are serious problems but our view would be that the problems exist today, they are serious and that they are growing and that since there is an effort on some people’s parts to explore what they consider sort of a new frontier, that some of the rules and expectations that are not yet in place perhaps lead to exploitation that is unnecessary, so I would speak for a minute about cybersquatting. I think there are three kinds of problems. One of them is cybersquatting, one of them cyberpiracy, one of them is a pure conflict and I think that we can deal with the pure conflicts whether it is a conflict because we consider it dilution, confusingly similar or identical but we certainly can probably deal pretty easily with a process that would bring us all together to try to figure out how we would deal with conflicts. Let me back up for a minute and talk about cybersquatting and cyber-fraud and cyberpiracy. I do not think anyone wants to see cyberpiracy and cyber-fraud exist in this area and I think that in fact if we were to sort of think about the arguments we can get off the table, those are probably the arguments we can get off the table. All of the dialogue we have had with CORE and with NSI and with others who are interested in being either registrars or registries, leads us to believe that there is great commonality about making sure that bad stuff does not happen in this space. A significant problem that we continue to have has to do with dilutions of our brand, where individuals register, for instance, "Call-ATT.com." AT & T has a service mark called 1800 call ATT. That is a relatively well-known service mark and that service mark is used on all of our calling cards for global calling purposes so that an international traveler knows that they can reach the AT & T international rate by dialing in 1800 call ATT. For those of you who are familiar with the telephony world, you know that we have to pay significant inter-connection costs in order to have a direct line connection in those 220 countries. So, we have to protect our brand, it is recognized by consumers and we cannot allow some one to exploit that brand or we, in essence, are letting our customers be defrauded. We are encountering the same kind of volume that other are encountering and that is cases in the volume of 15 to 20 per month. In one particular case, someone registered "ATTT.com," which linked to a pornographic site. While this area seem perhaps obscure to some, it is taken very seriously by those of us who have the brand recognition of the commercial players that are in this room. You heard about it earlier I think from some others. This is a very serious problem to us and here is our experience, someone can convince me that this will not be the universal experience, when a consumer goes to ATTT.com and finds pornography, they do not call the registrar or the registry, they call the brand owner and complain and we have to do something about that. Among the other examples are the registration of "AT-T.com", "ATTT.net", "ATTworldnet.net", "ATTwirelessservices.com", "ATTcellular.com", "ATTweb.com", "ATTonline.com", "ATTnetwork.net", "ATTTCI.com, .net, .org", it goes on and on. We do think that it is important so, when we talk about volume, we think it is there and increasing, we do think that it is important to have a uniform dispute resolution process. That all registrars, I struggle with making sure I get my delineations correct, could adhere to and could follow as a standard operating practice because we do think that form-shopping could be particularly problematic. People often say "after all you are a big company, you can afford the legal fees, so what if you have to place your brand, big deal", but my point to you would be that as a major provider of network commerce services, the customers, the business customers we serve through that business of AT & T are the small entrepreneurs who are building web businesses. We are not that different, probably, from Internet NCI or from Bell Atlantic’s Internet services and the customer being the small entrepreneurial business. Those are the folks who have to protect their brand as well and so anything that I have to spend a lot of money on in policing my brand also effects those small and mid-sized businesses. We do believe, and have stated in our filings, that an on-line dispute resolution process can be a very effective alternative and that, because of the volume and the cost, we think that it can be of great value in this process. We have not found to date, however, that the dispute resolution processes that we have seen put forward satisfy all of our concerns and we would like to see a standard applied in all dispute resolution proceedings that relies on identical or confusingly similar to or delusive of any demonstrable trademark right. We believe this standard is well developed in many countries of the world and we would like to see the panel take a very hard look at making that the standard. We also support the continued reliance on law and the courts. We recommend strong measures discouraging cyber-web-squatters and individuals from incorporating famous marks and their domain names to attract attention to their websites and we do think that if false information or false and misleading certifications are made that the domain name should be taken away from the individual who engages in that false and misleading behavior. I think Sarah Deutsch may have made reference earlier to what we hope will be the standard in the copyright legislation, which establishes a notice and take-down process which is well articulated, well documented and the company then would know what they have to complete in terms of the information they supply to the registrar and the registrar would have a clear path of understanding what they need to do.

I wanted to make one further comment about the role of studies and the importance of studies. I know that, again, it has been stated that there really are not a lot of these disputes and that there really is to a good understanding of the kinds of problems that exist. I think therefore that both what has been referred to as the ............. study, which we view as a regional study, and the WIPO Study are particularly important to help to document the kinds of problems that are in existence today and are developing.

Finally, I would close by saying that we know that this process is going to go on, that it is an iterative process and that WIPO will be continuing to engage in ongoing consultation and that we look forward to participating in that process.

Chairperson: Thank you very much Marilyn. May I just ask you one question because I was very interested in, amongst all of your observations, the first one which was a matter of conviction or belief or analysis that, in the virtual world consumers, or the vehicle between consumers and providers of services or producers will continue to be brands. If I may just explore that a little bit because it has some relevance, I think, to our process in the sense of the threat to the domain name system of any keyword-based system that might be developed and, if one thinks in the real world, and in real world terms now many of the most successful marks have been entirely fictional names which do not bear any resemblance to the product whatsoever; Kodak, Sony - all fictive names. Amazon.com, of course, would never have been picked up on a keyword search in some directory if you were looking for books, it is only by association of Amazon.com with a library that is conducted an electronic book shop that one associates it. Have you got any comments on the indispensable nature or the importance of the domain name system to the maintenance of this vehicle of identification, road sign I think you said, between the consumer and producer or supplier.

Ms. Cade: I think in your earlier U.S. meeting, you heard from Porsche? You know, Porsche is a name that is recognized in probably as many countries as AT & T’s name and most people do not think that Porsche would mean playing cards or would mean gelatin or would mean communication services. The brand that my company has built stands for communication services and products, Internet, electronic commerce, communications, other kinds of services like that. When I talk about brand, I am really, I think, using the identity concept, that is consumers expect that if they see AT & T that we are about communication services of one type or another. They also think we are about trust and reliability and we have poured huge resources into making sure that they can have that trust. Lots of other brands, I mean if you just think of what the average consumer that you go shopping with, standing next to you at the grocery store or at the library expects, rather than thinking about it perhaps so much as, you know, the trademark holder or the trademark attorney but you should think about what consumers feel comfortable with. We see consumers, in the physical world, beginning to rely on generic brands, yes. But they tend to also maintain loyalty to brands that they recognize and our sense is that that is going to continue and our view is that yes, generic names, perhaps key names will emerge but we do not think that is going to replace the, you know, I hate to use this term because I know it is not well defined, but the well-known, well-recognized, when I see that brand goes by on a bus, regardless of if I am in Berlin or I am in Poland or I am in Argentina, I recognize that brand and that, I think Francis, is how we are looking at it.

Chairperson: Very interesting. Thank you. The floor is open for comments or observations. Philip Sbarboro please.

Mr. Sbarboro: Marilyn, a question I would like to follow on from Susan Anthony’s, down to earth, concrete, you have chosen to use ADR, she says maybe we are not there yet. What would it take for an administrative challenge panel, whatever you want to call it, what would it take before AT & T would put its trust in that alternative method?

Ms. Cade: You mean solely?

Mr. Sbarboro: Well, not solely, but should you choose to go to court, you go to court but should you choose to go to this procedure, you are bound by it. So, before you do that, what does it take before you go to that?

Ms. Cade: You know, I am not an attorney, as you know Phil, but I have some great ones back home in New Jersey and I think they think that there is a reason why we rely a lot????? So, you know, going to a new decision process without having a good understanding of what our rights and obligations are, on both sides, would probably take a few iterative steps to feel like we understood what the judgments are going to be based on.

Chairperson: Yes please Madam and then Don Heath.

Ms. Christina Nystrom: Good afternoon, my name is Christina Nystrom and I am student here at Georgetown University with a great international business professor, a little plug there. I guess I have really only heard about two or three of these speeches and a couple of things were concerning me. This first is how it is that you will be able to determine who gets what name. For example, say I live in Alabama and I own a company called "Alabama Tumbling Timber", why can I not use AT & T but AT & T the telecommunications company can. Yes, I am very concerned about how that will be decided and it seems to me a little bit like whoever has the most money is the one that is going to prosper and that is definitely not what I think that the Internet should be doing. I guess the last, my lifetime pretty much that computers have been a pretty big thing and it has been pretty much commonplace for people to have computers and use them and I have always viewed the worldwide web, the Internet as something that anyone has access to, anyone can you know put information up there about themselves, their cause or their organization and it would not be a problem and it kind of sounds like that is starting to change. One more thing is that it seems to me that if companies are so concerned about other people getting domain names such as "CALL-AT&T.com" and all of that, why not be proactive? If you are going to have a new service or, you know, a new operation starting up you go out there and take every name you can possibly think of, pay the, whatever it is, 35 dollars, per name and kind of side-step this whole issue altogether. That’s about it.

Ms. Cade: Tell me your first question again, I got two I think.

Chairperson: Indian Bicycle Manufacturers.

Ms. Cade: Let me give you an example of perhaps the impracticality of, first of all I will let others respond to the extensive number of years and court cases that have gone in to establishing trademark law, both national and the examination of how we move to famous marks but let me give you an example of, indeed if you did, by the way the ampersand does not translate into, we are not able to protect that, so. But if you did take ATT.net, .com, .org, you would be helping us perhaps by dealing with inquiries by our 80 million consumers and our 10 million customers.

Ms. Nystrom: ................ new business too.

Ms. Cade: Well, they might be looking for communications not whatever the business that you were in so, you know, you might be encountering a significant amount of consumer and business bad will which is a problem that we worry about, quite factually, we worry about that. We think, as a brand owner who delivers a certain set of goods and products to businesses and consumers, they have a right to find us at the end of that path because that is who they thought they were getting. I think that for the trademark issue we have spent considerable money and time obtaining trademarks not just here domestically but in other countries and we have identified, as many of those potential dilutions that we can, and we do pay for them even though we cannot use them but we really cannot forecast the ingenuity of others who might decide to take our brand and use it in some way to draw traffic to their own site when it is either a direct competitor to us but they are trading on our brand or they are in a different business completely but they think they are going to attract perhaps business inquiries for themselves. So we can try to register as many as possible. It is extremely expensive to do that, we are talking about country codes as well as gTLDs we would have to police all of those marks that we registered in all of those different places which would be additionally expensive, we would be adding to the consumer confusion. Let me talk about free speech for just a minute, I do think that you would find any commercial stakeholder here who would disagree that there is a terrific value to any communications medium to support speech but there are always parameters to that speech and if you are engaged in diminishing the value of another’s property right, we would say that that really is not fair and should not be supportable from a legal perspective. But I will give you a specific example. There is a site called ATTsucks.com, just as there is for almost any big company and we have not tried to prevent that site from being up. We have not tried to say that consumers cannot put sites up where they complain about the quality of a product or a service.

Ms. Nystrom: It seems to me also that to some extent you have to put some faith in the consumer themselves. I heard someone earlier talking about whitehouse.com so I went over to the computer lab and checked it out. Wow! And I think that at some point, you know, when someone goes to one of these sites it is going to click in their head that this is not the White House site and I will check out ATTT just for kicks and I am sure that I will find when I see it that it has nothing to do with AT & T and I think that in some instance you need to, you know, kind of put a little bit of faith in the consumer that they are looking for telecommunications.

Ms. Cade: I am going to respond to that with a very real example of what is going on in our own Congress and what is going on around the world. You know, we can talk about protecting business and we can say "well business can take of itself." But you know what? Kids cannot take care of themselves and we have a very serious problem of pornographic sites being accessed by domain names, misuse of famous brands etc. and so the reason that is relevant to this, when we find that someone has registered one of our brands, one of our marks and put up a pornographic site and that site is now accessible to children and we go back and try to take the site down and we find that individual has used fictitious or misleading information and we cannot find them, who deals with this problem.

Ms. Nystrom: The parents, but that is another issue.

Chairperson: Please, Marilyn if you want to add but that is enough.

Ms. Cade: No, that is OK.

Chairperson: OK. Don Heath please.

Mr. Heath: Oh yeah, going back to the subject of, I hope I made a note because I am forgetting I got so interested, of the uniform resolution policy and you talked about arbitration, I think Phil or somebody brought up. Am I correct in saying that you would accept non-binding arbitration only but not .......

Ms. Cade: Well Don, you are correct in saying that so far our filing, on both the Green Paper and the White Paper, indicate that that is the extent of our thinking on this. This is not AT & T’s official position. I think it is unlikely that we would accept binding arbitration at this point.

Mr. Heath: Could I do an informal pole? How many people in this room who could say .................... OK never mind, later.

Chairperson: Are there any other question, comments or observations? John Wood, Susan Anthony, Harold Feld and we break for coffee.

Mr. Wood: I want to make several points and then ask Marilyn to expand on something as well. The first is that it is very important for us to make a delineation between the issue of freedom of expression and issues that pertain to trademarks because a fundamental component of a trademark analysis is commercial use. Freedom of expression does not have to have imported into as content a commercial use component but trademark law and what trademarks are all about is a commercial thing and often, when this interfacing and dispute goes on about where does freedom of expression end? etc., that is sort of left out. The young lady whose name I cannot remember who came up just before and forcefully discussed this overlooks one thing, yes, an application for a domain name registration may be 35 dollars but if you cannot time in the day to make enough applications to cover all the variants that revolve around dilution because, for example, with Network Solutions policy you have cover every single one of those because they have to be identical so that, in itself, is a virtual impossibility. Then to say, well now I have got to do it with all the other country codes makes it nigh on impossible so what becomes the issue, as an opportunity cost, what as a business case can I really protect and need to protect? What can I or have to leave alone? If you are, for example, Unilever that has 15,000 brands to sit here and then have 15 or 20 variants around it. Now, in the area of telephone numbers this was dealt with by the FCC by a very simple rule. They recognized that people dialed in error. But here we are in another addressing mechanism but that seems to be non-sequitur. I would also like to pick up on what Marilyn Cade about the ............. study because there have been people in the United States that have either seen this as a duplicative work, or seen this as unnecessary and I think that they serve very different and very necessary purposes because though we want to have a global picture, there are issues and considerations that are very much germane to trademark holders here in the United States and I think Marilyn you would agree and maybe there is some things you would like to say on that point.

Marilyn Cade: No, John, I would just agree with you and I know we have several other questions, so.

Chairperson: Fine, Susan Anthony please.

Ms. Anthony: Marilyn, what guidance would you give to this panel for the introduction of or for the registration of famous marks and any new generic Top Level Domains that may be introduced? Should there be some sort of proactive exclusion and if so, how would that be put in place? I believe earlier today, was it Mr. Connelly had suggested that there might be an opportunity for an examination if a string were to contain Porsche or certain components of Porsche.

Ms. Cade: Again, we have in both our Green Paper filing and our White Paper filing suggested that, there should be an agreed-upon definition of well-know marks and we know that the work that WIPO is undertaking can make a contribution to this but we think that it is probably important to move forward with perhaps an interim agreement on what would constitute well-know marks for this purpose. We think then that that agreement could be best served, I know Susan comment when asked about whether maybe a database should be provided by government or by the private sector, I guess our view would be that a searchable database that registrars could check for famous marks that were blocked off would be of real value to registrars and of real value to, not just famous marks holders, but to others who are looking for names and who are not interested in being in conflict, they are just interested in getting into business. So, if the searchable database or series of linked databases were available that could, we think, really help everyone involved in this process. Finally, we would also say that only the owner of these famous marks should be able to block any third party domain name registrations, I know there was a discussion earlier about should there be an appeals process and certainly there should be. I think that, you know, we would say that there is nothing wrong with ascertaining "well, you know, we have gotten someone who wants to register this name, you have blocked it, is there any exception to this?" I probably am on record as having said to WIPO that we do think that the searchable database is at least a quasi-governmental responsibility because it would need to pull from the registered trademark databases. I guess I personally would have a concern as well about setting up at least initially conflicting entrepreneurial databases that perhaps small registrars would not be able to afford to check multiple databases but if there were, at least initially, a centralized resource it would be more cost effective for them.

Chairperson: Thank you.

Ms. Anthony: I just had one little follow up. Is this something that you would limit to only those marks that are truly famous worldwide and if not, how would define famous? Who should be entitled to such proactive exclusion?

Ms. Cade: Susan, I think that that is one of the things that we would think that this panel would need to undertake an examination about.

Chairperson: Harold Feld, you are the only thing that stands now between us and coffee.

Mr. Feld: I shall do my best to be brief then. Two points. One, I was asked when I was up there how I could say there was not a problem to which my response was: well, electronic commerce has grown from practically nothing to three billion dollars over the course of the last three years and is projected to grow to 300 billion dollars or something like that in an equally relatively short time. Even if we postulate that there is a problem of cyberpiracy, that there is confusion going on, that our policing expenses for famous marks, is it really the case, as some here seem to have suggested, that if we do not solve this problem immediately, if not sooner, that the Internet itself is at stake, that we are facing some sort of crisis. The second question I have is you raised the issue of what are commonly known as "Oops" sites, sites that plan a deliberate misspelling and other sites that use variations of the name, my question, I guess, is where does the matter end? We have already seen where Radio Shack has gone after anyone who uses the suffix "shack" in their name, as if Radio Shack, being a famous mark, is the only one entitled to a relatively common word. We have seen companies go after generic words, the case of Pony International versus Pony, which was someone who had not registered Pony as a trademark but was imply using Pony because it was warm and fuzzy and directed people to a site designed for children’s game and, of course, Prince versus Prince, which I think everybody has heard about. So, where does the matter end?

Ms. Cade: So, let me take your last question first. I am not a attorney and I am certainly not, therefore, a trademark attorney. My expectation about where the matters ends is that it continues and that the issue of what is dilusive and what is confusingly similar will continue to be debated and to be perhaps fought out, Harold, in court, as you said earlier. But I do think that there is a difference, at least from a business standpoint, between dilusion and the use of common phrases or words like pony or like shack. I think that this panel’s work is particularly going to be important to understanding what the challenges are that are experienced in companies that are trying to move to the net to do business and that leads me to answer your first question of is there a crisis? I think that, in fact, that if we do not protect, and this is a personal comment, if we do not protect and respect trademarks on the Internet that we will see a significant change in how the Internet operates and probably a significant proliferation of what we would think of as public intranets that would be fee-based and that the owners of significant intellectual property such as content etc. will only want to business in that somewhat walled space. There is subscription services where they have a greater degree of control. That is not something that most people who really are strong proponents of the democratic value and the evolution of the Internet as we are sort of seeing it grow up today, would find good. But I do think where we will reach a crisis is if people are unwilling to do business on the net because the y do not trust it and trust has many factors, we happen to think this is one of them.

Mr. Feld: Just one quick follow up. But do you think that people will grow to distrust it less than they do now? Is that the crisis that you are foreseeing?

Ms. Cade: I think that when people, look we have close to 80 million consumers as customers. Are experience about how consumers move to a new medium is that they like predictability and that it they continue to use a service and they think they are going one place and they do not get there, that they get increasingly frustrated with it and stop using that medium.

Chairperson: Thank you very much, Marilyn Cade, for this contribution and for your continued participation. I would like to propose the following menu, that we break now until four o’clock, that will leave us one hour during which time I would propose to you that, with your agreement, we do the following: I know that Professor Michael Froomkin would like to, as it were, read certain questions into the record, he would like to raise certain issues that he thinks certainly matter on which it would be desirable to have some comments received. So this would take a couple of minutes, I do not think it will be longer than three or four or five minutes. Thereafter, I would like to propose that we just informally and in a very non-binding manner, go through some of the key questions that have been discussed today and that are raised in the RFC to see where people are shaping up in relation to them. Thank you, let us break for coffee.

BREAK

Chairperson: OK, shall we proceed. We are lesser in number now and, as I mentioned, I propose that we start with Professor Froomkin who would like to encourage reflection on a couple of issues, so I will ask him to raise those issues that he feels needs to mirror some reflection now and then we will proceed to have a look at the RFC in a little bit of detail after that. Please.

Prof. Froomkin: I spoke earlier of professional socialization and its dangers, I will now reveal my other Hades as an American administrative lawyer and in that form of professional socialization it is extremely common for public bodies that are in the process of trying to come to a decision to reveal their ignorance in the hopes that people will do their work for them and tell them what they need to know. So, that is what I propose to do, speaking entirely personally, as someone who has been involved in this process for approximately two days and, that is right, an expert and without prejudice to the things that I am not mentioned which are also in RFC-2, some of which are quite important but these are just things that I thought required some ventilation since I may not be able to attend any or at least a significant number of other sessions, I thought it would be useful to put it on the record so that they might come up and I could find at least in the transcripts. So, here we go, I think I have got 11 of these. Forgive me.

The first is, it may seem trivially obvious, but it would be reassuring to me to know whether there are countries in the world in which there is a question about the legal status of a domain name. Is it accepted worldwide that this is property, inalienable and alienable property, because I know there are some ccTLDs that take the position that they control, the government controls who gets them. One wonders whether in those countries or other countries, the assumption that we tend to seem to work under in this country, that a domain name is alienable and therefore judicial arbitral remedies forcing someone to disgorge works is followed around the world. If it were the case that it was true everywhere it would solve one set of problems.

The second one, it may seem a bit peculiar, but I have a paranoid mind, I guess, and that is whether there is any issue about potential abuse of the trademark registration system by a government in order to silence its offshore critics. I can imagine a hypothetical, I have no reason to believe this has happened or would necessarily happen, in which offshore critics register a domain name, the government which controls its national registry then gives itself or somebody friendly a trademark in that domain name and then goes to the body and says, please make these people go away. It might be nice to try to design a system around that if people thought that that was a real potential problem.

My third problem has been ventilated a little bit and I am sure in other places we will hear much more about it. But I am personally quite ignorant about the third world concerns in these issues but we would need to be educated about what can be done for people who, as it were, are late to the party, are not well networked now, are not first to register in gTLDs and so on, do they need any sort of special consideration and in the context of the suggestions which have been ventilated today about having searchable systems, how one works in the rights of persons and countries which are under networked and under electronic and would be difficult to bring to that. Again, I need to be educated.

My fourth point is, I am aware of one academic study on the subject of judicial responses to domain name claims by Professor Muller ....................., I have heard some talk today in which people gave different sort of statistics, an empirical data about the nature of the problem would, I think, be enormously welcome There is nothing like facts, like quantification to help one make good decisions.

The fifth is the issue of prepayment. The number of people who have spoken today in favour of prepayment schemes, if there is anyone out there reading this or listening to this who thinks that is a bad idea, it would be nice to hear from them. I have, in my life, only heard one argument against it so far and that is that it is sort of restricts impulse buying. So that if you are in the business of selling registrations, you might be against this. It would be interesting to know if there are other arguments to counter-balance that.

My sixth is whether there are privacy issues in the database of people who register domain names, are there legitimate grounds in which one would wish, a party would legitimately wish, not to have their identity disclosed and should people be concerned about that? And also under the legal systems of other countries, are there privacy laws that might affect the ability of people to put those things in the database. One thinks of the various European database acts as one, but not the only, example. I could stand to be educated on that. We have had some discussion today of issues of sort of what is, assuming WIPO has a completely free hand in what jurisdiction it chooses to assert for itself, what would be the best thing for it to do? Should it be looking for arbitration rules just for gTLDs, should it write rules that might or should be applicable to ccTLD-related debates. I think this issue needs to be addressed explicitly. Should it be trying to propose substantive rules of law decision for these things? If it were doing that, should it be doing it as a matter of descriptive, what the rules are out there, you know, a big book of the rules of the world? Should it be recommendations to states as to what their rules should be? Should it be recommendations or potentially mandatory rules to be put in contract of the various parties in the registration system? Should it be a buck passing exercise in which some other body, like UNCITRAL, is begged to please taken on a model role-making procedure? I do not know. Please tell me. Choice of law was mentioned, this strikes me as an enormous issue. Also modes of arbitration, I will have talk more about that in a minute. It would be enormously helpful for me to hear from technical people at some point in this process about what sort of wonderful ideas are hiding out there which might make some of our assumptions moot. My experience for the past five or six years of doing Internet-related things is that things change really fast. I would be extremely uncomfortable to predict what comes but there may be people out there who know and if they can tell me, if they have ideas about things that might make some of this moot, it could save everyone a lot of trouble. I have read suggestions out there that one possible solution to some of the problems is an ultra-free market solution. Some people claim that creating a small number of gTLDs is like pulling the Band-Aid off slowing and really painful. The .............. thing to do is to create a zillion gTLDs out there right away so that consumers will then understand exactly what is going on and free market solutions will be encouraged to develop and that the slow process will not produce that nearly as efficiently. It would be interesting to hear what people think of that idea. Again, I do not endorse any of these ideas, these are honest questions about things I have read and I need to be educated about.

Number ten on my list is the problem of grandfather issues, it seems to me that somebody might be heard to suggest that people who are currently registered today in a gTLD or another TLD might deserve some sort of different treatment from future registrants. I would want to know what people think about whether or not there is anything to that or that whatever rules exist apply backwards in time as well as forwards in time. Similarly, I would be interested to hear about whether, under whatever set of rules is going to apply be it substantive rules recommended through contract or existing national laws, there is any sort of period of repose for these things? How long can you have a registration before you can stop worrying about someone coming along and saying it is theirs?

And last, and by absolutely no means, least, in the context of the proposal for arbitration procedure, I think a lot of attention needs to be paid to who the arbitrators would be, who would select them? As a former arbitration lawyer, I am quite aware that this is not a mechanistic procedure, that the method of selection of arbitrators matters a great deal, that there are enormous differences in a system of party choice, single arbitrator versus multi-arbitrator, systems in which there is an institutional stable of arbitrators from which one can choose versus one chooses anyone, a system where there is an institutional stable and that ................ selection??? is random. These produce potentially different outcomes and certainly a very different user feel, an education about how people feel about those alternatives would certainly, I think, be helpful to me at least. Again, I speak just for myself, not for anyone else and I thank you for your attention.