WIPO Internet Domain Name Process

Transcripts: Toronto regional consultation

University of Toronto
January 19, 1999

 

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(Mr. Ron Daniels, Dean, Faculty of Law, University of Toronto): Ladies and gentlemen, I am Ron Daniels, Dean of the Faculty of Law at the University of Toronto and it’s my very distinct pleasure to be able to welcome you here today to the World Intellectual Property Organization's Toronto Consultation on Domain Names. I understand that this Consultation is one of six regional consultations that would form the third stage of the WIPO Process. This stage would focus on the Interim Report on the Management of Internet Names and Addresses. I am particularly delighted to learn that we are hosting the only regional consultation that will take place in Canada in the WIPO Process. In this regard we are very proud to welcome you to the city. We have a quality of life here that is outstanding and believe that you cannot ask for a more amenable city to be in for a consultation, and we believe that even in the dead of the winter, so welcome. In addition, we are equally proud of our University and I want you to take full advantage of your visit to Toronto and explore the many wonderful aspects of our campuses. We have three campuses. You are on the St. George Campus. I state with considerable pride that we are one of the leading public universities in Canada, with upwards of 55,000 students, 10,000 graduate students and over 3,000 faculty members. In many ways it is fitting that we are able to host this meeting on university grounds and in this University in particular.

First, there is a long historical connection between the development of the Internet and universities. Second, the University of Toronto actively encourages inter-institutional collaboration and consultation and all aspects of its research, teaching and community service mission. In this spirit, your consultation has attracted an array of representatives from the Governmental, inter-Governmental and private sectors and we are delighted that this community of interest is taking place on this campus. Third, as a leading research institution in Canada, intellectual property issues are obviously of great interest to the University. Last year, this University alone created eleven spin off companies generating a significant amount of intellectual property. Finally, the specific focus of your meeting, domain names and intellectual property rights raise a number of waxing issues that are a very considerable interest to us at the law school. At the Law School we see ourselves as playing a key supportive role to industry and Government and society at large by addressing the new tensions and legal issues stemming from advances in technology and new forms of collaboration and innovation industries. Quite obviously, this area of law is of great interest to our legal practitioners in Canada and this is confirmed by the participation of lawyers from several of Canada's leading intellectual property firms in this Consultation.

Before closing, I would like to acknowledge the wonderful work of the Organizers, the co-sponsors, the Patent and Trademark Institute of Canada and the Canadian Association of Internet Providers and those members of our staff at Hart House and the Office of the Vice President of Research and International Relations, who have made this event possible. I recognize not only the significance of the discussions that you are about to embark on, but understand the pace of the entire WIPO Process has been, to say the least, intense. We, at the University look forward with great anticipation to seeing your final report at the end of March and wish you every success in your Consultation today. Once again, welcome to the University of Toronto and the best of luck. Thank you.

(Ms. Michelle d'Auray, Executive Director, Task Force on Electronic Commerce, Industry Canada): Good morning, my name is Michelle d'Auray and I am the Executive Director of the Task Force on Electronic Commerce and Industry in Canada, and this is probably the second low tech presentation you will get this morning. I would like to thank Ron Daniels for hosting us and I will say a few words on behalf of Industry Canada, the Government of Canada on the importance that we accord to these kinds of activities particularly on the growth of electronic commerce. We see this as obviously one of the growing sectors of the Canadian economy and we take particular interest in looking at and in participating in these discussions today. As Dean Daniels said there is obviously a historic connection between the University and the Internet. There is also a growing connection between a number of Internet Service Providers, Government, lawyers and a number of other interesting bodies that have seen the light of day in the recent months and years. We launched the Canadian Strategy for Electronic Commerce in September of 1998 and we have a simple goal in Canada, which is to make our country a world leader in electronic commerce by the year 2000. There is a running joke that comes with that, which is that we will get it right and then the computers will do something called the Y2K bug. However, we do see, all kidding aside, we do see a growth potential for E-com for Canada. You have all heard all of the wonderful predictions, but in terms of the Canadian economy it could represent about CAN$13 billion by the year 2002 if we do as well as we do in other markets. And if we get our policy framework right we think that we could grow to about CAN$33 billion. The strategy that we have developed in Canada has focused on four key areas. One of them is building trust and confidence in the digital market place. The second is clarifying marketplace rules of which this activity is an important part. Strengthening the information infrastructure and realizing the opportunities so that we can all benefit both from the private sector and citizens.

The work that the WIPO is doing fits in two ways. First, obviously it helps to clarify the marketplace rules. The domain name and trademark connection is an important one, where clarification of intellectual property protection is obviously required. And second, the Internet governance and domain name reform are key elements for the information infrastructure that is needed to support continued growth and E-com. The consultations that we are about to undertake today are an important factor in that and I won't keep you much longer from them. I would like to commend the Panel for braving I guess what would become Canada's winter, but it is really a sort of a spring so we seem to be leaping lively forwards and backwards between some seasons.

I would like to introduce the WIPO staff and experts and the members of the introductory panel. Chris Gibson is the Head of the Electronic Commerce Section in the Office of Legal and Organization Affairs at WIPO. He has been responsible for the Domain Name Process at WIPO and he will chair today's meeting. Five experts have joined us this morning. Professor Michael Froomkin from the University of Miami School of Law who is now a jaded expert after five years in this domain. Donald Heath, President of the Internet Society who needs no introduction to many of us. Mark Partridge, Member of the Board of Directors of the American Intellectual Property Law Association. And Philip Sbarbaro, Chief, Litigation Council with the Firm Hanson & Molloy Inc. And he wants us to specify Network Solutions is one of his major clients. And many of you will know Ken Fockler who is President of Tenac Consulting and former Chair and President of the Canadian Association of Internet Providers. Finally, I want to introduce Glen Bloom, President of the PTIC and Rob Hall, the Vice-Chair of the Canadian Association of Internet Providers. Along with Chris Gibson they will serve as our introductory panel and Chris, I am told will summarize the Interim Report from the WIPO and Glen and Rob will provide their comments. That will be followed by panel discussion which will serve to highlight the key areas of agreement as well as those needing further consideration. I would like to thank all of our partners in this event and I too join my welcome comments to you to Hart House in Toronto. Good luck, Good panel.

(Mr. Christopher Gibson, Chairperson, Head, Electronic Commerce Section, Office of Legal and Organization Affairs, WIPO): Thank you very much Michelle and please excuse me if I decide to sit down as I say a few words at the outset of this meeting so that I can read my notes. First of all, I would also like to extend our thanks and gratitude to the co-sponsors of this event, the Patent and Trademark Institute of Canada and the Canadian Association of Internet Service Providers and I would also like to extend thanks to the host, the University of Toronto for giving us this facility today to hold this meeting. As most of you know, the World Intellectual Property Organization is a specialized United Nations Agency which is devoted to the protection of Intellectual Property at the international level. We have about 170 Member States and we administer more than 20 international treaties. We have a Director General who joined the Organization about a year and a half ago, Dr. Kamil Idris and he has made electronic commerce and issues in respect of the Internet a high priority for the Organization. It is an area that we are now concentrating on quite a bit. This particular Process, the Internet Domain Name Process, is viewed as being a unique new way in which WIPO might provide assistance on these issues. As most of you know, we are an organization that have essentially two different aspects, one is we work with our Member States to develop norms, international norms or treaties. On the other hand, we also provide services directly to the private sector. Registration services so that one can obtain protection of intellectual property titles on an international basis. This is the first in the series of consultation meetings, the second series as was briefly mentioned we have meetings now planned six of them. The next meeting is in Singapore, January 22nd. We have a meeting after that in Rio de Janeiro on February 2nd. Then we go to Dakar, Senegal on February 10th. Brussels on February 17th and finally Washington D.C. to conclude on March 10th. These meetings are to develop and receive comments on the Interim Report entitled 'Management of Internet Names and addresses Intellectual Property Issues. This Report was published on December 23rd, which meant that I had a fairly nice holiday but many of you probably had something else that you could read instead of your favourite novel. The Report itself is a draft Report and that is very important to remember because what we are looking for now is feedback. In this meeting and in the other meetings that we will have as well as through the website that we have established which you are looking at right now.

Let me just say a few words about this website. This is a new way that WIPO views as being able to involve a greater level of participation around the world. On this website we have posted texts, we have provided regular updates to those who have registered through the website. We have over 100 participants that have registered from 75 countries to receive updates as this Process progresses. We also have a discussion list. It is an unmoderated list where those who want to can discuss to the widest extent possible the issues involved in this Process. This is one of the key modalities in which we have tried to spread information about the Process and post our texts. We also have provided extensive mailings of the reports that we have produced to our Member States and to accredited non-Governmental organizations, because many of the Member States and others that are participating in WIPO activities don't yet have the opportunity to go to a website and simply download or print off relevant documents. Finally, the third modality that we have used to try to further this Process and spread the information are these regional consultation meetings.

Let me just give you then a brief step by step background of the Process. We commenced this on July 8th with the posting of WIPO Request for Comments No. 1. This was a document which requested comments on the proper scope of what we would address, on the procedures that we would use and on the timetable that we would follow. This, particular request for comments came in response to the White Paper which the United States Government posted on June 5th and in which they requested that WIPO undertake to address a set of issues related to intellectual property and dispute resolution. The comment period for that first Request For Comments closed on August 24th and thereafter we then did a number of other things. First of all we appointed a Panel of Experts. We have fifteen experts and you have already had the introduction of those that are with us today. At all of our consultation meetings we have regularly had between three and six of our experts to come. They have also joined us in Geneva to help us draft the Report that is now posted and also they will be joining us again towards the end of this Process to help us discuss the comments and the views that we have heard in the six meetings that we are now holding. You will see in Annex 1 to the Report that their backgrounds are provided and I want to again on the record thank them for their extensive help throughout this Process, the travel they have done, the views they have offered, the way they have allowed us to see from very different perspectives some of the issues that we are addressing. The Process also received approval from WIPO's 171 Member States in mid-September at the regular meeting of our Member States. That actually occurred after we had initiated the Process. I guess that goes to show that certain things these days happen so quickly that you have to move ahead and then do as best as you can to consult for example, as in WIPO's case with our Member States and then make sure we seek approval for this Process. So, in that sense we have a network of Member States that are also following this with a great deal of interest.

In mid-September we issued WIPO Request for Comments No. 2. I am not going to go ahead and move through the website. I think though you will see that its there as are all of the comments that were posted to that document. We received comments from Governments, inter-Governmental organizations, associations, educational institutions, companies, law firms and individuals showing the broadest different categories of interested parties. We held the 11 regional meetings that were referred to earlier around the world and we closed off the comment period to that document on November 6th. Then, we met with our experts and finally we went and published our document on December 23rd. There are a couple of guiding principles that we have tried to follow as we have conducted this Process.

The first one should be pretty obvious, we have wanted to design a balanced and international process allowing for the widest range of participation by all interested sectors. That is those that are interested in the use and development of the Internet. These meetings are an example of that. The website and the interactivity of the website are an example of that. The paper mailings that we do are also an example of that. So, the effort has been to involve as fully as possible, or at least provide opportunity to all those that would wish to participate.

Secondly, as we started to understand some of the issues we thought that our effort should not be to try and create new legal rights, but to give expression to existing multilaterally agreed standards of intellectual property protection. And you will note in the Report that we refer to some of the treaties, the international treaties that is, for example, the TRIPS or the Paris Convention and what the basis that is there. And you will also note in our Annex 4 and 5, our Annexes that we have listed the Member States. So, you start to see the international framework that already exists in respect of some of the intellectual property rights, the trademark areas that we are talking about today.

Third, we decided that we wanted to make sure that our recommendations are practical and that we would avoid proposals that might condition future technological developments or interfere with the legitimate rights of other interested Internet stakeholder groups. The way I think we have tried to achieve this is by listening, listening to those on our Expert Panel as well as those that have come to the meetings who come at these issues. For me there are technical background or legal background or perhaps reflecting another interest like the public interest issues and free speech issues and privacy issues which we have also had to consider. I can say quite frankly that when we started off on this we did not begin to understand in depth how some of these issues plan to this particular set of issues domain names and their conflicts with intellectual property rights and trademarks.

The focus in the Interim Report. We focused on four primary areas. The first is, as we called it best practices designed to minimize conflicts and tension arising out of domain name registrations. You will see in Chapter II that we have addressed a set of recommendations in detail on some of the measures that might be adopted. The second area is dispute resolution procedures. We noted in the U.S. Government's White Paper, that there was a wide consensus that some sort of uniform framework for dispute resolution procedures be developed and we found that same sense in the consultations that we heard during the fall. The third area is a process for the protection of famous and well-known trademarks. This has been an area where there has been quite a bit of attention, because the famous marks are the ones that most often encounter difficulties from those that would try to register as a domain name the trademark of another. The fourth area then is to evaluate the impact of adding new generic top-level domains on intellectual property rights. And in this area, we will talk about it later, we found that if certain measures are adopted we would think that new top-level domains could be introduced in a controlled manner. We also mentioned in that area whether there should be an additional differentiation between commercial and non-commercial domains.

Finally, during the consultation process that took place during the fall, we found that the functional similarities between country code domains and generic top-level domains meant that many of the same issues presented themselves. As it stands, I believe there are about 250 country code top-level domains which are not fully utilized, but in which registrations are picking up. So, in a sense if we tackle the problem just in relation to generic top-level domains we may find that the same issues repeat themselves. I remember quite well at the Tokyo consultation the fellow from Nissan saying "my problem isn't that I don't have a well informed situation here in Japan, but that in Korea they are registering Nissan, Lexus and so forth and I have problems there". So, we see that there is a set of issues and of course the different country domains are at various stages of developing their own policies and of thinking about these issues. WIPO believes that the recommendations that it has put forth here may be useful in all top-level domains in which domain names are freely bought and sold.

In concluding just let me say, WIPO has worked very hard to create this balance in an international process in which all interested parties can participate. This meeting today is the first in the second series and it will wind up as I said earlier in March 10th in Washington D.C. And we do hope to build on the comments that we receive today and each of the other five meetings that we will have during this second session of meetings. With the hopeful outcome that we issue our final report at the end of March.

Let me say just a few things now about meeting logistics. We are going to have as you know a few other presentations right now from Glen Bloom and Rob Hall. In addition, I have received some indications from those that have registered today that there are a number of people who would like to make some introductory presentations. The names that I have thus far are Jonathan Cohen, and I see Jonathan is here. Robert Allistat, I don't know if Robert is here. Brian Dillon, I know Brian is here of course. Elliot Noss whose here and also Elliot Simcoe. And so, what we will do after these presentations is try to get the discussion going by having some of them speak. After that, we have one other person who has indicated they will be here in the afternoon, Mr. Shawn Tedder, but besides that then what we would do is we would go through the report section by section. We feel like we have given you and everyone else quite a bit to think about in the proposals that we have included in this report and we are actually very interested not in talking to you, but in hearing you talk to us. What I will try to do throughout the day with the help of the experts here are raise issues, frame questions ask if there are any comments. Ask if there is anyone that would disagree with the particular proposal, or if that particular proposal raises any special type of concerns and just listen. What comes out of this meeting is an understanding which we share with our experts. We also will have the transcript posted on our website and made available to others as well as the audio files. We did that during the first series and unfortunately we had some delays in getting those things implemented. But I think we are now better organized. This relates to the comment earlier this morning about the speed at which this Process has gone forward, but I think we are getting better organized and we will have a fairly quick posting of the transcript that comes out of this meeting as well as the audio files, so that those who weren't here today can also read or listen to the interventions that are made. As to the schedule if things go well we will have a coffee break from 11 a.m. to 11.15 a.m. and then again in the afternoon from 3 p.m. till 3.45 p.m. Lunch is scheduled for 12.30 p.m. and I believe it is in the music room which is on this floor, somewhere just down the hall past the library. And I think that is it. I will now turn it over to Glen Bloom, thank you.

(Mr. Glen Bloom, President, Patent and Trademark Institute of Canada): The Patent and Trademark Institute of Canada is very pleased to co-sponsor this session, this consultation today and to welcome WIPO and the members of the Group of Experts to this consultation. The Patent and Trademark Institute of Canada is a professional association representing the interests of over twelve hundred intellectual property professionals in Canada and in other countries. The members are patent and trademark agents and lawyers in the field of intellectual property and others who have an interest of matters relating to intellectual property. In relation to the particular document, the Interim Report before us today, Council of the Patent and Trademark institute of Canada charged one of its committees the Domain Name and Trademark Committee to consider the document and to provide Council with recommendations about the proposals set out in the Interim Report. In light of the short time-frame available since the delivery on December 23, the Committee has been able to prepare a draft of a report which was circulated to Council at the end of last week. The intent is for Council to review the document and to furnish it within the next couple of weeks to WIPO and also to the Canadian Government for comments that might be pertinent to issues that the Canadian Government is considering in the E-commerce agenda.

This morning I would like to provide some general comments and some general questions about certain of the recommendations in the report. I am unable to say that there is a consensus on all of the comments that are set out in the Committee's reports. There are a number of members of the Committee here who may well wish to express their own views as we go through on a clause by clause or paragraph by paragraph basis, and I leave it to them to raise the issues that they should wish at that time. I would just like to refer to a few points under each of the chapters that either raise general questions or concerns to the Patent and Trademark Institute of Canada.

Starting with the Chapter II dealing with best practices, there are a couple of points that appear to the PTIC that may be beneficial to consider. The first one would be that there may be benefit in having an applicant for a domain name being required to provide some very general description of the business and association with which the applicant intends to use the domain name. This would be of a considerable assistance to intellectual property holders in searching and determining whether the domain name is something that may be of concern. That is the first item. The second item, there may be some merit in considering the requirement of a statement of an intent to use the domain name. And the rationale is that if there is a for including a statement of intent to use might be that if there are entities that seek to stockpile domain names for sale, that including a statement of an intent to use in some business context other than mere stockpiling might then give a statement that if materially false would give rise to the ability to cancel that name. So, there is some thought that perhaps there is merit in going that extra step. A third item in relation to the Chapter II issues is really a question that is raised about the rationale for not disclosing the registry details to the public. Understanding that there are some concerns with respect to confidentiality, but recognizing that the Domain Name System does involve at least in part an allocation of a public asset. It would appear at least at first blush that the allocation of the public asset might override the concerns about confidentiality. At this stage, all we can say is that this is an issue that raises a head with us and it may be that the Panel will be able to enlighten us further about the rationale behind the recommendation that it has made where the confidentiality seems to have a higher play.

If I may turn to the Chapter which sets out some comments on the dispute resolution procedure. The first item that comes up is again really a question, and it is a question of whether the mandatory administrative dispute resolution process is desired in fact in view of the recommendation that litigation also be available to either party. And the mandatory administrative dispute resolution process would appear not to give rise to any final resolution and would appear to be something that could be interrupted at any stage by either party, and moving the matter into a court setting. Also the question is raised about this process in light of the significant jurisdictional difficulties and issues about the applicable law arising from a mandatory administrative dispute resolution system. A second comment would be that if there is such a process, a mandatory dispute resolution system, some thinking has been given to suggesting that the proceedings be confined at the initial stage to circumstances of cyberpiracy. The go-slow approach might have some merit. And the rationale behind that suggestion would be that there are very tight time-frames that are proposed for this process, and those tight time-frames may be necessary in light of the desire to create an expeditious and effective mechanism. Those are very tight time-frames may be entirely inappropriate and the procedures may be entirely inappropriate for circumstances of true infringement. And therefore, it is suggested that it may be appropriate to proceed in the slower course in circumstances of cyberpiracy. It may also be desirable however, to at least attempt to define the circumstances surrounding cyberpiracy, what cyberpiracy is. There are, as I understand and the Committee understands, circumstances which may not be readily identifiable as cyberpiracy or instances which may in fact be infringement, but on the face of it could look as though they are cyberpiracy. So, some discussion of what cyberpiracy is might be warranted. A third comment with respect to Chapter III is a question really, as to whether the remedies that are proposed under this dispute resolution mechanism can be effectively imposed and the PTIC has particularly in mind any order as to cost and whether those orders can be enforceable across different jurisdictions. And the last general comment about Chapter III relates to the proposal to consolidate procedures over any TLD. This proposal raises rather difficult questions about jurisdictions and questions of applicable law and really the question is raised as to whether consolidation is appropriate until such stage as there is some general understanding as to the jurisdictional and applicable law issues.

Turning to Chapter IV which sets out the process for famous and well-known marks. It would appear that an underpinning to Chapter IV is that there is some international concensus on what a famous and well-known mark is. And in light of the ongoing discussions in another WIPO Process relating to the Standing Committee on Trademarks it would appear that there is not yet such a consensus. And there certainly does not appear to be a consensus on any international registry or any international list of famous and well-known marks. And a question is raised as to whether it is not prudent to await the outcome of the WIPO Process on famous marks to arrive at an international consensus if that is at all possible. We make this comment in light of Canadian law where the scope of protection for a so-called famous mark is very much up in the air and is a matter that is currently before the Supreme Court of Canada. There is a second comment, in the absence of any international consensus on what a famous or well-known mark is, and I might just add at this point in time that some comments were expressed that if you ask any trademark owner, their trademark is famous and the Report refers to a few hundred. Well, you might get a few hundred from a few hundred different trademark owners. But, in the absence of a consensus as to what a famous and well-known mark is, any exclusion order might only apply if the mark is famous within the country of the country code TLD. Thirdly, under Chapter IV a question is raised with respect to the proposal for canceling a domain name registration in circumstances in which the registration is abusive. The stated grounds within the Report may be too broad and I am referring in particular to the suggestion that an abuse might arise where there is an attempt to capitalize on goodwill regarding personality rights for example. If there is a lack of, at least at this point in time of a concensus on famous and well-known marks internationally there is probably a greater lack of concensus on issues as to the protectability of personality rights and the circumstances in which any such rights should be protected.

Turning to Chapter Five and the impact of new generic TLDs, in view of the difficulties posed by the existing gTLDs for owners of intellectual property rights it would appear to be wise to proceed in opening new gTLDs with some degree of caution. In the Report there is some reference to the possibility perhaps of distinguishing between commercial and non-commercial users and we only raise the question of whether this distinction is one that is meaningful. An owner of an intellectual property right may have a valid interest in desiring to restrain the use of that mark in non-commercial circumstances and then we therefore raise the question of whether that distinction is a meaningful one. Those are the general comments that we have at this time and we will in due course as I indicated at the outset be providing some further written comments and we look forward to some of the discussion today which may clarify some of the questions that have been raised as a result of the consideration of the report today.

(Mr. Rob Hall, President, Echelon Internet Corp.): I want to thank you on behalf of CAPE again for allowing us to host this here and for coming to listen to our views. I will talk a little bit about who CAPE is, I will run briefly through some general comments. But as I understand you are going through the document piece by piece this afternoon we will probably have more comments at that stage. I will also hold some of the specific comments for that stage as opposed to taking time now. The Canadian Association of Internet Providers also known as CAPE is an association of Internet service providers, Internet commerce providers and basically any provider that is providing a service over the Internet, whether it be access, whether it be web hosting, domain registration. We are made up of national companies right down to the small local ISP. We are both commercial entities and non-commercial entities, so we are non-profit entities such as the free Net (...............?) that are members. Our membership carries about 90 per cent of the traffic in Canada. So, 90 per cent of the users in Canada get to the Internet and use the services of our membership. I have to say that overall we are very impressed with the Report. We had some fear and trepidation and I am impressed with how you handled a lot of the key issues. It impresses me that you formed this Panel of Experts and I think they hit the nail right on the head certainly with the issues. And although we may differ on some of the individual points of them, by and large I think we have to say that we are impressed.

To talk briefly about best practices I think the key for us is that the barriers must be low to get a domain name. We cannot be seen to be putting in place more barriers for people to obtain a domain name. Certainly in Canada we have seen what some of these barriers can do. Even in the .CA domain where the barriers were simply time, it was a free service. It was not a financial barrier, it was just hard to get and took time to get. That caused 90 per cent of our registrations to go to a commercial service and pay for it in the U.S. because it was more viable. So, it must be commercially viable. We cannot put barriers that would make us not commercially viable, able to compete with other registries such as the .com who frankly over the last few years have gotten very efficient at processing registrations. That also necessitates that there probably should be no waiting period. And we have to be able to do business on the online world almost instantaneously. We cannot put a barrier up saying you must apply for it and wait for any period of time before its active or before you are granted - that does not seem viable.

The information of registration should be available to all. I think it should be who owns a domain should be publicly available. I know that brings up the question of anonymity, should it be allowed or not. I think it depends on the current laws of the country. You should be able to reach an agent at least fairly easily if you wanted to start an action against someone. But, whether the domain should be anonymous or not I think would depend largely on the laws of the individual country, certainly in respect of ccTLDs. I think the registry should be in some way indemnified. I don't think you ever want the registry involved in a trademark dispute or intellectual property dispute. They support the body that is performing the registration. I think that should be part of your recommendations. Sorry, registry sorry not the registrar. The registrars I would love to see them indemnified as well, but I think that will be that the registry has indemnification of the head and that could be done through contract with the registrars I believe. And that brings up I think ultimately there should be some contract put in place between the people who are registering domains and the registries to ensure that everybody is aware of the rights. And I know a lot of people will tell you they own the domain, but that may not be technically correct. And I think the other thing is you should pick one jurisdiction per registry. I think one jurisdiction, one legal jurisdiction where disputes will be settled is an added benefit certainly for the ccTLDs. The advantage of us being able to say that the Canadian Registry for .CA falls under Canadian law and that is what will apply takes away a lot of the problems of trying to enforce property rights internationally at least within the .CA domain. This may not work as well for generic top-level domains. However, I think a lot of the problems will be solved if they said this generic top-level domain is operating under this set of laws and rules. You know for the purposes of registering within this domain.

On dispute resolution, I am very pleased to see that ADR has suggested and not made mandatory. I don't think ADR should be the be all and end all. Most countries have courts, most jurisdictions have courts that are already in place to set up with disputes. Although it may seem that if both parties agree an easy way to settle a dispute or at least get some input on has someone gone across the line and registered something and they will ultimately lose. If it is a time saver and a money saver and both parties agree then certainly it could be used. But to say that we forced people through ADR at this point I don't think is feasible. I think also with dispute resolution you have to be very careful about removing domains for abuse. And the word abuse I am not sure has been properly defined. It seems to be defined in some ways and yet vague in others. I notice that non-contact, if you are unable to contact the domain name holder, that would be grounds for removal of the domain name. There was also some suggestion that the registry may have to come up with an automatic system for checking this. I don't know whether that was meant on a regular basis, checking the information on a regular basis. Practically that could be very hard. I am sure the 42,000 .CA domain names currently in Canada and the 3.2 million .com names, I bet that it would be very hard to contact a lot of the people on the domain. Not because they have tried to make it difficult but more because the information has became stale as people move or addresses change or contact information change. To simple cancel the registration and give it to someone else isn't feasible. There may need to be a suspension period if that is the route you want to take, or some other way method of conduct and I am not convinced it should be the registry's problem to deal with. I am not convinced that the registry should be the one. Now when a person comes to me and says I cannot contact this person, now the registry has to spend resources trying to track down the person and otherwise to expunge the domain.

I think you also need to be very definitive in the terms you use of cybersquatting and cyberpiracy. What are these, and how do you define them. I have heard them widely defined from people who register, you know, a book of names with any intent to sell them. And I have also heard people say it’s clearly trademarks, it’s clearly famous marks. I don't believe that the warehousing of domains for the intent to sell them is necessarily an illegal act that should be discouraged. Trademarks that may apply to you, but if I go out and buy a generic name like bank or tickets.com.CA. And because I bought a large number of them am I now considered a cybersquatter, even though I may not be infringing upon anyone's specific trademark rights. So, I think that needs to be defined very clearly. Simply because I buy a lot of domains does not necessarily make me an infringer of trademark rights and my dimension may not necessarily be removed.

On the famous trademarks issue I think you must define a list. I would love you to come up with a list that these are the famous marks that are alive. When we went to the Canadian Government and said "where is the list of these marks", they pointed us to a Japanese website run by the Government of Japan saying "well this is kind of the definitive one right now, but there is no such thing as a list of them". I notice in your Report you also suggest that maybe that landmarks and geographic regions or locations may be considered famous marks. So, that means that every city in Canada, municipality or township can consider their name to be a famous mark. I think you have opened up a can of worms there that you may not want. I think that if you looked at most of the cities in North America you would probably cover a lot of the trademarks that exist whether they be famous or not. So, I think that needs to be a little more clearly defined. And I am not convinced yet that famous marks need some special protection over non-famous marks. I mean should a famous mark with respect to the registry and the domain name have extra protection over a trademark? I am not convinced that that's the case. Certainly famous marks tend to be easier to defend. You tell someone obviously Coca-Cola.CA would be an infringement of the Coca-Cola Corporation’s rights. But, a Canadian company that may not have a famous mark internationally could also be equally infringed.

Under the subject of new top-level domains I think most commercial owners and service providers, and this is by no means a unanimous, we certainly have members of CORE that are part of our association and I guess Network Solution Premier Partners I think they are called, that would not agree. But certainly for the majority of commercial Internet service providers we have talked to and certainly our counterparts at the Commercial Internet Exchange in the U.S. feel that there is no reason or we have not found a compelling reason yet to create new top-level domains. I hear the argument all the time that although it will give us more domain name space. What it does is it causes the owners of the intellectual property to go and protect their names in even more venues. So, now Coca-Cola must go and register its name in every top-level domain. Creating two or three you might just create more of a problem. And certainly until you resolve the jurisdictional problems.

As to how your comments will apply to country code TLDs, I think it would be great to look at them as a guideline perhaps or resource that country code TLDs could use. You know a lot of the country code TLDs are going through change and transition right now and a lot of them have no guidance as to how this is been done or what kind of a lead in the way on this. But to say that your recommendation should absolutely have to apply to the country code TLDs, I don't believe is a good recommendation. I think it should be used as possibly a guide where each country must come up with their own set of rules, because they may differ in some cases than the international recommendations.

I would like to close with just the status of CIRA for those who in the audience who may not be aware that the Canadian Internet Registration Authority was incorporated in December 29th of 1998, so just last year. It has an initial Board appointed, it is wrestling with all of the same issues so I will be anxious to sit and listen to some of the comments that you are receiving because in the next few months we will be dealing with exactly the same issues you have. And we are actually pleased that you have come out with this report at this time, because it gives us some basis to look at and discuss and start discussions with people and make sure we are all in the same page. So, I would like to thank you for the opportunity.

(Professor Michael Froomkin, Professor, University of Miami School of Law): I would just like to ask one question to clarify. You said that you oppose the idea of mandatory ADR. The Report makes a distinction between on the one hand the traditional ADR which gives a binding result and forcible accord, and the administrative dispute resolution procedure which is a non-binding mandatory ADR. And I was wondering if that satisfies your concerns or if your opposition to mandatory ADR extends to the administrative procedure proposed.

(Mr. Rob Hall): I think my position is on mandatory ADRs. I don't think that you should force people, rights holders or domain holders through a process other than the courts if they wish to go to the courts. So, to say you must go through ADR it will be binding and you have no recourse to go to the courts of a specific jurisdiction is fundamentally wrong. I know that most people seem to think ADR is cheaper, it is easier, we should do that because we don't have to go to court. It is interesting to hear lawyers say this specifically because you tend to think of them as wanting to go to court a lot. So, to make it mandatory that you must go through ADR and to make it binding, no I would not agree. If both parties agree that that is the way they are going to handle the dispute they should have the opportunity to do that. So, if you and I were in dispute over a domain name and we agree both to go to ADR and to be bound by the resolution of ADR, then yes. I think that is where ADR comes in and is appropriate. But certainly not to make it mandatory that because I own a domain name I give up some of my fundamental rights to go to court to protect that name and I have to go through some alternative process.

(Professor Michael Froomkin): So, just to be clear, you would be satisfied with this scheme if it just added sort of a very clear statement that if either party goes to court and stops them in its tracks basically.

(Mr. Rob Hall): I think the courts should be the ultimate decider of this. If one party wants to go to court and wants to fight in a court of law that's been within the jurisdiction of the domain, then I think that is their right and it should probably be upheld. However, I think most disputes may end up saying yes I will go to ADR, its the easy way. I know that by going to court you may give rise to the David and Goliath syndrome where the big companies always win because it is expensive and that type of thing. But certainly they might want that quicker resolution of an ADR as well, so there are pros and cons to both. But to force people and say you no longer have the recourse of the courts of your country, specifically with the country code TLDs does not seem viable.

(Mr. Christopher Gibson): Let me just also thank Rob Hall from the Canadian Association of Internet Service Providers and before him Glen Bloom and as people speak or make interventions today, I will ask you or interrupt you to ask you to state your name. As I realize I hadn't said that earlier, to make sure that in creating the transcript that we have for this, we are clear on who is speaking at any particular time. We will come back to the issues that we just discussed there with respect to ADR, whether it should be mandatory, in what sense and I think it is important to point out that one of the problems that occurs if it is left to be completely voluntary is that at the point of a dispute parties find it very difficult to agree on almost anything. Although, if they are both in good faith sometimes they do find that they can select or choose a process other than the courts because they find it might work quicker. They have their opportunity to decide on who might be the independent decision-maker and they can form some of the procedures that might be involved. As I said we will come back to these kinds of issues later today when we treat with Chapter III.

(Mr. Donald Heath, President, Internet Society): Just by way of clarification for perspective purposes, we have to remember that the procedures that are being developed by WIPO are only going to be recommended to ICANNN and that ICANNN will then be the implementers. And it seems to me they could actually do it in part or they could go slowly for instance as you recommended Glen or they could adopt different part of it. I think it is going to be frankly interesting how this actually unfolds, because we have not given much thought about that. WIPO produces something, a final thing is created, it is given to ICANNN who now must implement it. And how ICANNN if they accept it and how they implement it remains to be seen. So, I think that this process probably, will it be over until ICANN starts to put this into use if they do? So, it is worthwhile to clearly grind out all of the concerns and questions on the ................., but I think there might be another iteration. I look at Mike Roberts sitting over there and I am not sure what he thought about it, but I don't think it is over yet.

(Mr........................?): If I can just comment on that, I think it is broader than that even Donald. I think certainly ICANN will be one of the ones looking at your Report, but I think every country code TLD that does necessarily fall under ICANN or may dispute whether they fall under ICANN or not, will also be trying to formulate their own. There may be many, many iterations of this, not just your report going to ICANN, but certainly going to all the ccTLDs that are wrestling with this at all.

(Mr. Ken Fockler, WIPO Expert, Former Chair and President, Canadian Association of Internet Providers): As Chris said Greg we will get into Chapter III a little more in detail. As I wrote out some of my notes I think what I am finding is there needs to be some clarity in the report. Because I wrote down that Glen was questioning whether mandatory is required, so he seemed to read it that mandatory was in and then Rob said he was pleased to hear that mandatory wasn't there. So, maybe it is in the IODB holder but I have to go back and see what does it say and how does it read.

(Mr. Christopher Gibson): If there aren't any more questions now what I will do is I will introduce the next speaker that has indicated they would like to make a statement, but first I see Mike Roberts would like to make an intervention from ICANN.

(Mr. Mike Roberts, ICANN): Thank you, good morning Mike Roberts from ICANN. I have both a comment and a question. For the benefit of the question that has been raised about process I should say that its widely expected that ICANN will follow the guidance in the White Paper to begin a process that will, to use trademark language lead to some harmonization of registry and registrar practices across the entire Internet community. But that is a very non-trivial task and it might take quite a while. For instance, we certainly would not adopt anything in regard to the famous marks exclusion until the trademark community had come to some middle ground or consensus of its own. That just would not make any sense. So, to some extent our process will create cold hooks for the evolving consensus so that community on some of these disputed issues. Beyond that they would be quite specific about process. We expect to publish a preliminary document that addresses some of the issues and some of the directions in the second week of February on our website. We are obligated by the terms of our agreement with the Government to contribute to the Process by which the .com, .net, .org domains are opened up to registration competition by spring. And so we will at our meeting in Singapore make some preliminary progress on those obligations, while at the same time encouraging the community to work with us on a longer-term process to work through some of these things.

The question I had was whether you think there is a tangible difference with regard to a mandatory feature on ADR. What I think I am hearing is you are saying that the proposal is that the process would be mandatory and in a sense it would become a term in registrar contracts with registrants. But that the process would firstly not prejudice any litigation rights and secondly it would contain a knock out provision. And so I think that you created a situation that is largely psychological with regard to the mandatory feature. For instance if I am a registrar and some dispute comes up and I am not comfortable that the ADR is going to lead me anywhere with regard to dispute, then I could say one minute yes we are triggering off the mandatory ADR and then write a letter to the guy saying I am out. So, it’s taken you all of five minutes to be in and be out. And so, I think that maybe the best course of action here is to get back to in practice how would it work either way. And in fact I think what you are saying is that if the parties do not want to do it, then it is not going to work. And I think that to the extent that Rob has pointed out that people from his community get kind of nervous and anxious to get a red flag of "mandatory." People would see the mandatory and not see the odd doubt. And so then you create noise in the system that you did not intend to create.

(Mr. Christopher Gibson): I think in response to that comment I will just summarise briefly the points in the Report that address the proposed ADR alternate dispute resolution procedures. The Report treated with three different alternatives. Mediation, the second, arbitration and the third an administrative dispute resolution procedure. For mediation which we find to be a helpful device between parties that have a good faith dispute, we have not suggested that it be part of any contract, but that parties at their option might determine at any point just as they could in any negotiation for any dispute, that they would find mediation to be a useful mechanism and they would therefore involve a third party independent neutral to help facilitate those negotiations. Arbitration is a second procedure. There is certainly a very elegant and well established framework for international arbitration. But the characteristics of arbitration is that it is a contractual device and normally parties preclude their ability to resort to court when they have chosen in a contract to arbitrate, when they have committed to arbitration. Therefore, once that commitment is made if a party did try to go into court with another party, the court would tell them usually in response to a motion to compel arbitration to go back to the arbitration itself. At the end of the arbitration there is another distinctive feature which is that arbitration awards are final and enjoy enforcement under an international convention known as the New York Convention on the Recognition and Enforcement of Arbitral Awards. What that means is that if you lose in an arbitration you cannot then go to a court after that procedure and seek to have a rehearing on the merits of what was considered in the arbitration, or seek to have a de noble review. The only reason under the New York Convention that normally you can go to a court is to raise questions of bias, procedural irregularities, or problems in due process, but not on the merits. Now, the third procedure that we then provided was essentially something that picked up on some of the positive features of arbitration, but at the end of the day we determined that we would not suggest that it be vested with the characteristics of finality that I just discussed. We did say that it would be a feature of a registration contract and that a party would agree in the contract that if called to that administrative dispute resolution procedure they must go to it. At the end of the day though, there are two questions we have raised here. One is whether the procedure can be interrupted at any point by either party who says, I no longer want to participate and I want to try and file a suit somewhere where I can obtain jurisdiction over the other party to the dispute. And there is a question whether you should have that approach or whether you should require that the parties at least stay engaged until there is a decision. The second issue that raises itself in this context is the decision itself. The way we proposed the treatment of decisions from this administrative procedure is that they would not be accorded any degree of finality in a court. If a party loses in that procedure that party can go to a court and seek a fresh hearing on the merits of the case. And we have suggested that there would be no legal or presidential effect to that decision by the court. Of course you cannot suggest to a court what weight it will give to a decision. The court will decide for itself. But in that sense we have defined a procedure that falls without the international arbitration law that I discussed earlier. So, I hope that's just a helpful clarification as to what we have try to say in this report and we will get back to it again later I am sure. Michael Froomkin.

(Professor Michael Froomkin): I just wanted to add two points. One is that there is another element to the proposal which is relevant in this context. And that is that if the administrative procedure goes to its conclusion, it is currently proposed that the effects are immediate. And that means that parties who would wish to exercise their court option, will need to find a court with its jurisdiction and get a TRO, essentially instantly. That is an interesting challenge depending on the various locations of the parties and what is at stake. The other point I want to make is in response to what Mike Roberts said. In speaking just for myself I would caution people against seeing whatever WIPO produces as a done deal. I think a lot of people are hoping WIPO will solve this problem given its expertise and the high regard in which it is taken. But there are certainly elements in the current draft which if they were to be reflection of the final draft at least I would have to have dissent. There are many elements in here which are just, speaking strictly personally, quite troubling and I think it is important everybody understand that this is not an utterly uncontroversial matter.

(Mr. Christopher Gibson): Thank you Michael. Let me also just add since I am not sure if we will come back to this issue, the first issue that Michael discussed, we had a discussion amongst ourselves as to whether there should be an immediate implementation of a decision from this administrative dispute resolution procedure, or whether you should build in, for example, a ten day period during which either of the parties might find that they have been given some time to go to a court should they wish to try a second time to have a second bite at the apple because they disagree. That would be normally the losing party, which disagrees with the outcome of the administrative procedure. In that case then what could occur mechanically is that a notification from the institution that has administered the dispute resolution procedure would go for example ten days afterwards to the relevant registration authority so that a particular change might take place in the status of a domain name. And that was one discussion we had and we decided to put out for reaction the other alternative which is that effect could be immediate in the way that Michael described. I think as for the Internet connection we can leave that alone. I think what I will do now is to move things along, as I will ask Jonathan Cohen if he is prepared to come up and make some comments as well.

(Mr. Jonathan Cohen, Senior Managing Partner, Shapiro, Cohen): Hi! Jonathan Cohen. The worst thing about making comments is that I can't see you without my glasses or my notes with it. I am here wearing many hats as most of us are. Obviously I am an intellectual property lawyer and a member of a number of organizations. But today I am representing FICPI, which is an international intellectual property organization with roughly 5,000 members in over 70 countries in the world. All of the members are intellectual property specialists. They have charged me and my colleague, Helmut Sohn, from Austria who can't be here today to follow the WIPO Process and the DNSO Process and to report to them for the purpose of making their report ultimately to WIPO and ICANN. I have had a lot of fun doing it and in so doing it we have held our own initiative, consulted a meeting with some of you present in Washington in September and it was a very interesting meeting. We have tried not to duplicate this process but to take it from our own point of view. As a matter of interest we are now in the process of organizing a second meeting in New Zealand which should take place roughly a month from today. And I have already tried to twist the arm of a few people here to come and if any of you present are interested in coming or learning about it please contact me at via the Internet or phone me. I reconsidered making any extensive remarks at this time. My friend Glen Bloom and my new friend Rob Hall have covered I think most of the issues that I would have covered today. Perhaps one that was suggested to me by Michael Froomkin on the way over I thought was kind of interesting. It is heresy and I certainly hope my competitors won't send a copy of these remarks to my clients. But in talking about the commercial versus non-commercial domains it strikes me as not a bad idea. I understand it is trademark heresy, but what the heck. When I was in Geneva at the consultative meetings for IPOC more than a year ago, I talked about how the Wild West was over and you know the parking lot was paved and you know when you commercialize the Net along come the lawyers like it or not and all you people who long for the freedom of the old Internet are just dreaming in technicolour. But you know, I must say I am kind of intrigued by the idea of having a kind of a speaker's corner at Hyde Park. By perhaps designating a particular top-level domain as one that remains free, I mean subject to let's say criminal or I guess we are not going to allow child porn and weapons information dissemination, but I wonder if trademark owners aren't big enough boys that they couldn't live with some, a little dilution on a particular top-level domain. Anyway I leave that one for, I mean I can certainly argue the other side of it quickly and would at the drop of a hat for the right client. I mean let’s face it we know who we are.

I would be remiss if I didn't applaud in general terms the initiative of WIPO having followed it closely. I believe that the effort to seek opinion around the world from all the stakeholders is to be commended. I recognize that it is an imperfect process and must be by its nature. But certainly this is probably as close as we have been to seeing a true international consensus on something so major ever. And I think its the beginning hopefully of a new era. I am glad that all stakeholders are invited including those that we sometimes joke about as the radical fringe. But I think it is important that they be heard and that we don't all simply get together and preach and convert it as intellectual property or even techy people. I think that is all I really have to say today. I think I prefer to make my remarks about individual sections as we go through them. Thank you.

(Mr. Christopher Gibson): Thank you Jonathan Cohen. The next speaker that I have here on my list is Bob Allisat. I don't know if he is here today, I didn't think so. Mr. Brian Dillon from Industry Canada.

(Mr. Brian Dillon, Senior Project Leader, Intellectual Property Policy Directorate, Industry Canada): I am a policy analyst with the Intellectual Property Policy Directorate, Industry Canada. Our group is responsible for reviewing intellectual property legislation in Canada including the Trademarks Act, and providing advice to the Minister of Industry about the need for amendments to those statutes. So, that is how we approach it. But we also work closely with a lot of other groups at industry Canada and other departments who are here today looking at various aspects of the domain names issue. We would like to congratulate WIPO and their Experts on a very thorough and thoughtful Report. The Interim Report provides a comprehensive discussion of the key issues that need to be considered. As to the final package of mechanisms that should be adopted and the details surrounding those mechanisms we hope this Toronto regional consultation will give you a good opportunity to hear the views of interested Canadians from various groups including the Internet business and legal communities. Officials from the Government of Canada are also here to listen to those comments. It is a fundamental goal of the Government of Canada to enhance public awareness of Internet issues and encourage the private sector as it takes a lead role in Internet management. On October 2nd, 1998 Industry Canada released a paper entitled 'Reform of the Domain Name System Current Developments and Statements of Principle'. As part of the Government’s overall strategy on electronic commerce and in preparation for the OECD the Ministeral Conference that was held in early October in Ottawa. The Statement outlines some of the principles and policy goals developed by Industry Canada on behalf of the Government of Canada including the following; the Domain Name System along with other enabling elements of electronic commerce should rely on marked forces, self-regulation and competition to the greatest possible extent. For its part the Government of Canada will make every effort to facilitate opportunities for the private sector. The WIPO approach to seek out experts, representations and participation from various private sector communities has been a model approach and one that fits well with the Government's strategy.

Another principle enumerated in the Industry Canada Statement of Principles is that the process for applying for names should be quick, easy and inexpensive. At the same time the Government recognizes that any new system should have policies in place to reduce conflicts between persons granted domain names and other rights holders including owners of trademarks or business names. In other words a balanced approach is needed between on the one hand ensuring that there is efficient and inexpensive name granting system that continues to facilitate both growth on the Internet and broad participation. And on the other hand having policies in place to reduce conflicts between domain names and other rights holders. As noted in the WIPO Interim Report, avoiding conflicts at the outset through appropriate policies to prevent disputes is the first step. In cases where disputes have not been prevented it is very important to develop mechanisms to avoid litigation where possible. And in this regard the Industry Canada Statement of Principles referred to above also provides that. The Canadian Government strongly endorses the search for alternative dispute resolution mechanisms and notes that they have an important role to play not only in reducing the burdens associated with trademark disputes, but also in the whole range of activities and practices developing around DNS reform and electronic commerce. The issue of which court or courts will have jurisdiction over a domain name dispute involving a gTLD domain name is perhaps one of the most difficult problems relating to domain name disputes. The question of jurisdiction also affects a number of other areas of law and is the subject for a lot of international research. The Interim Report briefly touches on the issue of court jurisdiction, but recognizes that ultimately it will be up to the national Governments through their laws and perhaps treaties to resolve any fundamental problems.

As noted in the Interim Report the contract between the registrant and the registration authority can provide for an agreement by parties that they will submit to the jurisdiction of a particular court or courts. The recommendation in the Interim Report that this agreement is without prejudice to other potentially applicable jurisdictions seems appropriate. The third party complainant usually a trademark holder or tradename holder would not be bound by any such mandatory court selection in the registration contract and in fact could not be, and nor therefore should the domain name holder. The WIPO Standing Committee on the Law of Trademarks Industrial Designs and Geographical Indications has begun to look at trademarks and the Internet. I think Mr. Bloom referred to that earlier on. As authorized at their June meeting, WIPO was undertaking a preliminary study of two questions. The first question is how can a relationship be determined between a sign or mark that is used on the Internet and particular goods and services. And the second, how can a relationship be determined between a sign or mark that is used on the Internet and a particular country or territory. And that second question is vital given the international ambit of electronic commerce and the Internet. When will the trademark legislation of a nation apply to activities on the Internet and when will a nation's courts have jurisdiction over their activity. In Canada, a consultation process has been put in place to examine the interface between domain names and trademarks. A committee of intellectual property experts whose members represent law organizations with an interest in trademarks has been established by Industry Canada. The committee has begun an analysis of the Trademarks Act in view of domain names and Internet issues through a clause by clause review of the legislation and also examination of real life problems with the domain names and Trademark Law interface. The work of that committee will assist district Canada in the preparation of the Issues Paper which is planned for release this winter. The purpose of the Issues Paper will be to solicit comments from any interested Canadians on the need for amendments to the Trademarks Act. To take into account domain name practices and given the international nature of the Internet that policy review process in Canada will necessarily be conducted within the context of ongoing research being carried out internationally including your process.

The current process to reform Canada's country code top-level domain name, the .CA, is being led by the private sector and Rob spoke to that a little bit. In September 1998 the Canadian Domain Name Consultative Committee, which is responsible for the reform of the Canadian system, released its final report called ‘Framework for the Administration of the .CA Domain Names System.’ The report called for the establishment of a non-profit corporation to run the new system, by-laws for the new corporation to be called the Canadian Internet Registration Authority (or CIRA) have been drafted and the initial board has been established. The primary objective of the initial Board will be developed and implemented transition plan to transfer current .CA operations to the new registry. It is expected that the initial Board will establish a transition plan during the first quarter of 1999. Over the past few months members of the Canadian Domain Name Consultative Committee who have been working on the .CA reform and the committee of IP experts at Industry Canada have been engaged in discussions regarding mechanisms to prevent and resolve disputes between holders of domain names and holders of trademarks and trade names. Exactly the same issues that you are struggling with here. And an IP expert will be a member of the initial Board of CIRA.

The Canadian Intellectual Property Office presently has a database that provides access to information on all active trademarks and many inactive ones applied for or registered pursuant to Canadian trademark legislation. At the request of the Canadian Domain Name Consultative Committee, CIPO is making that trademark information available to the new corporation. That information will assist CIRA in measuring the importance of the potential overlap between existing trademarks and domain names and exploring how links to the database could be facilitated during the registration process. As a result CIRA will be in a better position to decide on mechanisms to build awareness regarding trademark issues as well as reduce the number of conflicts between persons granted domain names and holders of trademarks.

In conclusion, I would very much like to thank you for coming to Toronto and to hear the views of Canadians. Again our congratulations to WIPO and the experts here and who are not here on a model process that you have adopted, and an Interim Report that will serve a very good basis for your consultations. Thank you.

(Mr. Christopher Gibson): Thank you Brian, and I think that there may be a question Brian before you escape from Michael Froomkin.

(Professor Michael Froomkin): Thank you. I was just wondering whether you had an opinion on the question of choice of law. You spoke about jurisdiction as a related issue about choice of laws. As I read the current draft for the proposal the arbitrators would be asked to not so much decide the applicable choice of laws a judge might do. But sort of generate general principles from multi-national decisional law and general philosophy. I was wondering is it sort of representative of the Canadian Government. Is there a Canadian position on the appropriateness of that for the arbitral process?

(Mr. Brian Dillon): As for the Government we certainly don't have a position on that. I think you focused on one of the very difficult things and personally when I read the paper there was a discussion about the choice of jurisdiction, but coming down to the choice of law both in Chapter III with respect to the system, the administrative system and also in Chapter IV with respect to well-known marks, it certainly struck me as one of the most difficult issues. And it wasn't really discussed a lot. There was a discussion about choice of jurisdiction, but not so much choice of the substantive law. And I think personally, with respect to the gTLDs that is one of the biggest issues, Rob was talking a little about country code TLDs and it may be a different situation when you have a country code TLD, particularly one that is not being used, and that as a generic or whatever that is sort of branded for a country. It may be much more easy to determine obviously than the choice of law in that case. I do not know if that, it is not definitive. I think we realize it is a difficult problem but in terms of the definitive opinion on it we don't have it yet.

(Mr. Christopher Gibson): Let me again just clarify what we did say in the Report on this topic and also agree that it is a difficult issue to address. What we did is essentially to draw on the, this is one of the areas where we drew on the model of arbitration in which if parties haven't decided in a contract or at the outset of a dispute what law would apply, then normally it is left to the independent neutral to determine in light of the circumstances of the case what law might apply. So, what we did is, we said that in the context of the administrative dispute resolution system that we proposed, we would suggest that there be a mixture of two approaches. The first is, this idea that the decision-maker would determine in light of who the parties are, in light of the facts and circumstances of the particular case what national laws might be useful to be applied. In addition, we said that the decision-maker for guidance may also make reference to a set of what we suggested are a set of seven principles which represent in a sense a distillation of what you see in a number of the cases in different countries. That would be found for example on paragraph 199 of the draft, where there are essentially seven principles. There are actually areas of enquiry, if you will, that a decision-maker could look into to make sure they have covered all of the relevant basis. This would supplement the decision-maker's choice if the parties had not been able to agree on a particular law as to how to decide a case. Of course, if the two parties are from Canada you would think that they might agree. Let's go under Canadian law and that would be the law that would be applied in the context of this administrative dispute resolution procedure. On the other hand, if you have international parties or if the intellectual property titles that come into play maybe come from different areas, you are going to have to leave we believe some level of discretion with the decision-maker to determine at the time if the parties cannot agree what is the best approach. Those seven principles were the rights and interests of the parties. The use of the domain name, how is it being used? The length of time of registration. The nature of the top-level domain in which a domain name is registered. Right now since there is not a sufficient amount of differentiation among the generic top-level domains, this isn't a particularly useful criterion, but it could be if differentiation does develop. Also abuse of the registration of the domain name which we have discussed in some detail. Identical or confusingly similar, which is essentially the exercise of determining the similarity between the intellectual property title and the name or string that has been registered. And then finally, the first come first served principle by which domain names are registered which we said if the other areas or guiding principles or the law had not helped the decision-maker then maybe this is in a sense the tie-breaker that would occur or that might be just let the status quo remain. So, I bring that to your attention and I know again we may come back to this, this afternoon although we will see where the parties want to move. Thank you Brian Dillon and I have a couple of other speakers who have indicated that they would like to talk this morning. The next would be Elliot Noss.

(Mr. Elliot Noss, VP, Corporate Services, Tucows Interactive Limited): Good day. My name is Elliot Noss. I am with a company called Tucows Interactive Limited and I want to first provide you with a bit of background on what we do, to give you a perspective that I am coming from here and at times I will be turning and facing the audience. There are some folks back there I would like to address for some of the comments that I wish to make. First of all, I am speaking with a national perspective, a Canadian perspective. In the sense that Tucows Interactive Limited through one of its divisions Internet Direct is the largest independent Internet service provider in Canada. As well as being the largest domain name registrar in Canada. We register more domain names than any other Canadian corporation by a significant amount. Next, I am also speaking with very much an international Internet perspective. And when I say that, on the other side of our shop the Tucows division we have a website that distributes Internet related software that has affiliates in over 550 locations around the world in over 70 countries. I am quite comfortable saying that anywhere there is a significant Internet presence in a country there is a Tucows affiliate. So, we have very much a global perspective on this issue as well. In addition, our network of affiliates are overwhelming ISPs. We in fact represent the largest ISP affiliate network in the world. So, some of these issues I bring a Canadian and a national perspective, to some of them an international perspective.

I would really like to focus on what we are doing here today. And when I say today, I mean at this meeting in Toronto. Because I think there is a unique opportunity that we all have. The Internet is very much by its nature an international creature that has some national, some regional, some local elements to it. But it is in the main an international creature. Canada specifically has a history of federalism. And federalism at its core is different levels of Government working together. So, there is a strong history here of a national Government and issues that relate at a national level and provincial Governments and issues that are dealt within a provincial level. In addition, there is also an important recognition of the municipal level, the most local of levels. You have three levels of Government that I would like to think we integrate quite successfully in Canada. What we are seeing the nascent beginnings with the Internet and specifically with domain name administration is a new creature which is an international level. There have been certainly international treaties, international organizations in the past, but this is a bit unique. The Internet is both commercial and non-commercial in nature. It takes elements from all of these different areas and brings them together and I think we have a unique opportunity here that we should seize, and I will speak to specific stakeholders as to what this opportunity is. To create some sort of international administration that works. That can generate consensus and that works. And I think this process will not be an easy process. I think that this process will not happen overnight and I think this process will be a very organic process. And when I say that there will be lots of two steps forward one step back that will go on. But that should not discourage people, it should in fact embolden them. And I really believe that the two organizations that have the greatest opportunity to sort of push this vision forward are WIPO and ICANN.

I would like to issue a series of challenges here today. First to WIPO to try and make this process and to try and make the final framework one that is as international and as independent as possible. And that means that listen to individual national concerns, attempt to address them, but have as your clear mandate the need for an international level of dispute resolution when it comes to domain names. At Tucows we have a very much an international business. Again, as I have mentioned we have affiliates in over 70 countries around the world. Rob Hall was talking about the need for recourse to the courts at first instance and a national jurisdiction and the importance of respecting that national jurisdiction. There are any number of situations that we face where ccTLD registrations are unavailable to us because we are either not residents or corporations that are local to a jurisdiction, and what happens is we get poached. And there are probably 15 or 20 country domains that are out there that we have right now that we have almost no means of defending. Because if that principle of recourse to national jurisdiction becomes pre-eminent in this process it excludes us. Virtually excludes us on a practical level as opposed to on a technical level from enforcing those rights. To Mike Roberts and ICANN I strongly encourage you to adopt a process in dealing with ccTLDs where there is an agreement between ICANN and a group of Internet stakeholders in national jurisdictions such as CIRA in the Canadian context. An agreement, and I can't stress how important this is, an agreement between ICANN and CIRA for example as opposed to an agreement between ICANN and a national Government is absolutely fundamental to this process being everything that it can be. And to the representatives of the Canadian Federal Government here, I strongly urge you to support ICANN in that process and to support ICANN having a relationship directly with an entity like CIRA. That does not mean that the Federal Government should have nothing to do with the process at all. In fact I believe that the principles that we just heard, market forces, self-regulation, competition are absolutely important. The federal Government needs to foster that process. And I think Canada has a unique opportunity to be a leader here. To be a country at a national level and a Government level that supports an entity like CIRA entering directly into a relationship with an entity like ICANN. And I would strongly suggest to you if that process can't take place in Canada, I can think of no other country in the world where it will take place. If it does take place in Canada perhaps there will be others that will follow the lead. So, again there is a real opportunity for global leadership here for all the representatives of the federal Government and I urge you to take it.

To the intellectual property community in Canada. I think it is very important, and Mr. Bloom, I apologize for addressing you directly but I can't stress how important enough it is to recognize that domain name space absolutely has significant elements of intellectual property riddled throughout it. But that it is also unique and that it also does have some very important differences. At a practical level, again as I mentioned, we both have to defend these issues at an international level as well as by virtue of being the largest registrar of domain names in Canada deal with these issues at a registrar level. The court system works on a certain time line, the Internet works on another time line, the two will never meet. The facts that speak to that more strongly than anything else is the absolute dearth of litigation on these issues, not only in Canada but in the United States. In the United States where .com is the de facto international TLD and has been the court of first reference for disputes in the .com space. When you think of the dollars involved and you think of the number of parties involved and you think of the number of transactions, the millions of gTLDs that have been registered in the United States, it is incredible how little litigation that actually reaches a conclusion takes place. So, what that means is you have issues being dealt with at an interlocutory level. You have issues being dealt with because one party settles rather than incur the expense of a process. Let me just pay this guy his ten thousand dollars and make him go away, it is a lot cheaper than spending a hundred thousand and fighting this issue. That is what happens regularly. An ADR process that is a process of first recourse, that does have remedies that are binding. And I will come back to remedies in just a second. And that is one that it atoned to by all parties, is absolutely essential if this process is going to be efficient, if it is going to be international and efficient. And again, in Canada we have a unique opportunity to support this process and to shape it and to make it into something that works at an international level. And you raised the issue of remedies and I want to address this a little bit specifically. Remedies in this context can absolutely be limited to remedies that take place at a DNS level or at a domain name level. Damage to goodwill, damage to marks, damage to intellectual property that can be dealt with at a civil level, quite easily and quite in concert with the rest of this process.

Lastly, just to talk to a couple of issues that Rob raised. Rob and I have had many discussions on these issues and I would say other than my comments may indicate that we agree a lot more than we disagree. We represent again a network of 550 or so ISPs around the world. It is the largest affiliate network of ISPs around the world. We were intimately involved with the CORE process and other new gTLD processes. We generated the largest number of pre-registrations for the CORE gTLDs of any entity in the world. And I would strongly suggest that the number of Internet users that want those TLDs, which is tens of thousands speaks volumes. I would also suggest that the ISPs around the world and in Canada that we speak to on a regular basis absolutely support new gTLDs and see the need for them. And I want to get the message across that we think that again in concert with an important and an international and an effective dispute resolution process, the whole issue of gTLDs causing more problems than they solve absolutely should go away.

And lastly, Mr. Sbarbaro as counsel for NSI, I have nobody at NSI to speak to directly, I strongly urge you and NSI to support and adopt this WIPO Process because one of the greatest difficulties in the domain name space today is dispute resolution and NSI's handling of it. And the quicker you folks can get on board and adopt whatever comes out of here, even if it is a second best, the better off we will all be. Because whether we like it or not we are at your mercy to some extent in the gTLD space today. So, thank you and I would happily respond to any questions that arise out of my comments.

(Mr. Rob Hall): I just have one quick one on clarification. You said you had problems with the restrictions in other countries and you likened and said that that was probably based on the fact that court had jurisdiction in that country. I would suggest that the restriction on the domain is a very separate issue from the fact of which court is jurisdiction in that company.

 

(Mr. Elliot Noss): No, no, it is a practical restriction, it is not a technical restriction and I tried to make that distinction. It is virtually impossible for us on a practical level to retain counsel and sustain actions in 15 or 20 jurisdictions concurrently. Unfortunately, we are not a multi-billion dollar corporation and that is a very expensive time consuming exercise that would require literally an employee full time just to manage the team of lawyers around the world that we would have to use to effect that process.

(Mr. Rob Hall): I would agree with you, but I think you are lucky to have the process where you know what court clearly defines them.

(Mr. Elliot Noss): Sometimes we do and sometimes we don't. The process is so difficult and so daunting that most often we don't even know what the situation is or would be and go forward. We presume it would be the court in the national jurisdiction.

(Mr. Rob Hall): Maybe Tucows will be the first famous mark, because I think what we are coming to here is domain names because of their international stature may get the status of international mark or international .............. (interruption)

(Mr. Elliot Noss): That is a means.

(Mr. Christopher Gibson): Thank you Rob Hall and also thank you Elliot Noss. I have one comment among the many different points you made. And I heard this point also made by Rob, which is a question about whether new top-level domains should be added. And I think there is a natural inclination to address that comment in this process, but I think we have tried to be and we are trying to be very careful because as we pointed out in our Report there are a number of other considerations such as whether there is a market demand or a user demand for new top-level domains that need to really be evaluated. And all we are trying to do is look at it from one perspective which is the intellectual property perspective. And so from our point of view when that decision is made there will be a number of factors that have to be evaluated and one of them, and that is the one that we have tried to treat with is the question of whether it would have a great impact on the rights of intellectual property holders. I believe there may be another question here from Phil Sbarbaro.

(Mr. Philip Sbarbaro, WIPO Expert, Chief Litigation Counsel, Hanson & Molloy Inc.): Thank you very much. Not so much a question as a comment both on Brian Dillon's statement and Elliot Noss's. Elliot like a good trial lawyer I think you appealed to every juror independently in the room. I don't know if anyone is left. The position and Policy Statement of Industry Canada is exemplary, that's the kind of Governmental response that the Internet has received worldwide. Why the Governments of the world haven't dived in with both feet is wonderful. We all stand at that precipice wondering why it has not happened and thanking our mutual Gods that it hasn't. But understand where the Internet is. The regulatory giant stands at that edge and we together are coming up with a contractual relationship. Contractual relationship between ICANN and the registries, the registries and the registrars, the registrars and the end users. For example, John Demple has not contract with any of his 40,000 registrants. When Network Solutions started we did not have a contract in the world. We now have 3.5 million. To the concept that if ICANN causes a change in that relationship that affects that many contracts it is enormously sobering. So, we all take this very slowly. Contractual relationships are one thing. What you see happening here is that if through these recommendations from ICANN to the registries to the registrars, we allow third party beneficiaries to have and effect some rights. For example, trademark owners or third party complainants. That's an enormous change in contractual law, as perhaps good on one side as dangerous on the other. So that we are all mindful of those concepts. And this Report that Chris has come up with, I mean it is amazing if you read it, by the time you are through you are a true libra of things you can't decide anything. It is all balanced, very well balanced, so a very difficult process, but enormously important. This will be the first international corporate democracy that the world's ever known. And that is a real important step, without Governments it is amazing. I leave it to the Canadian Government to be right there in the front so I applaud them again.

(Mr. Elliot Noss): I agree with those comments. Would you address my challenge to you directly?

(Mr. Philip Sbarbaro): I was afraid of that. The relationship, I should not speak for my client here (interruption)

(Mr. Elliot Noss): I will ask you on a personal level, one of the Panel of Experts.

(Mr. Philip Sbarbaro): The relationship between ICANN and Network Solutions of course would be a contractual relationship, which has not yet occurred. I know they are too busy setting up their position getting ready to be what they are supposed to be and we all accept them and we are all waiting for that to happen.

(Mr. Elliot Noss): Thank you. And thank you all for the opportunity to speak.

(Mr. Christopher Gibson): Thank you Elliot. We have either one more comment or question from Jonathan Cohen on this and then we will move to the next and last speaker I think.

(Mr. Jonathan Cohen): Two quick comments. But Elliot one, after such an, I think it is just important that we now realize that Canadians can have passion. We are not a dry, quiet people. And secondly, the one thing I wanted to support that I had not mentioned earlier was I do believe that Mr. Noss's crack and that this is a unique opportunity to develop a truly international system for resolving conflicts and avoiding some of the serious multi-jurisdictional pitfalls that are coming upon us and we should not miss this opportunity. Thanks.

(Mr. Rob Hall): I will speak to that comment. I am not convinced that the DNS issues can solve the world's international problems of dispute and resolution. They seem to be thrust upon us all the time, because we are the forerunners in this and this is the first international entity. But I don't think I agree with the comment that we should be able to try and solve the international disputes that may arise over other factions of the Internet such as E-commerce issues and that type of thing. I think we should try and stick just to the DNS issues and resolving DNS issues as opposed to even more global trademark issues and we often I think get dragged into the global trademark issues too much.

(Mr. Mark Partridge, Member, Board of Directors, American Intellectual Property Association): I would like to follow-up on some of the thoughts that have been raised and looking at the procedures presented in this report one of the things we as a group have talked over and one of the things we have heard in our various consultations is of course there are legitimate trademark rights that people are concerned about. But we are also concerned about the rights of domain name holders and how this system will affect both sides if you will. But even that's not the right way to say it. Because often times a trademark owners are domain name holders and so it is all mixed together. But, one of the things we should think about in looking at the procedures that are proposed here is how it alters what exists now. And that is a perspective that I have tried to take in looking at this. That I think these procedures, if you look at the procedures that exists now there are circumstances where there are problems for trademark holders and circumstances where there are problems for domain name holders that we have heard in many of our sessions call out for some kind of improved solution. I think what the synthesis of procedures that's put forward in the Report seeks to do at least in my thought and as I have been reading and in commenting on is to try to find a way where both sides of the equation, all stakeholders in the equation will have a more efficient, more effective and fair method of resolving the disputes that do arise.

(Mr. Christopher Gibson): Thank you Mark, our next speaker is Elliott Simcoe.

(Mr. Elliott Simcoe): Thank you. It is always difficult to be the last speaker on any agenda and it is particularly difficult to follow-up such a passionate speech by the earlier speaker, but I will press on nevertheless. My name is Elliott Simcoe and I am an intellectual property lawyer practicing in Ottawa. I am a member of the Domain Names on the Internet Committee of the PTIC. Our committee has been busy in recent months looking at the two major initiatives concerning the Domain Name Process. Number one, reviewing and considering the WIPO Interim Report. And number two, considering the implications of the .CA reform process that you were introduced to by Rob Hall last night. One of the difficulties is that the time lines have been largely coincidental with each other and you can imagine therefore how busy we have been looking at these two initiatives. I have been asked to spend just a couple of minutes to share with you a proposal that is currently before the PTIC Council and that we are hopeful will be finalized and approved within the next few weeks. The proposal concerns only .CA reform, but we thought it would be helpful to share with the Panel some of the considerations that are in play when a TLD moves from a largely closed system to a largely open system. We started out from the proposition that it was largely a made in Canada solution to our made in Canada problem. But in my discussions last night with some of you it became clear that it is possible that our proposal may in fact even be used as a model for dealing with the competing interests when and if new TLDs are added. Last night Rob Hall described the .CA reform process as radical and I certainly agree. In summary we are moving from a closed TLD to an open TLD, the two major planks of the closed TLD was that generally with the exception of some bilingual considerations an entity corporation or individual could only hold one domain name, and in addition that domain name had to be closely associated with the name of that entity or individual. So, what in fact happened was that corporations or individuals with more than one trademark registered or not were forced to choose among their stable of trademarks and select it as their primary domain name. There are ways to work around the system. New corporations were incorporated, but for the most part corporations did in fact select one domain name and use that one and left their other trademarks out there. Even if a trademark holder did not wish to use its trademarks in association with an active website. Experience in the USA and throughout the world indicates that it is good defensive practice to register all your trademarks as domain names. Thankfully, and largely as a result of the restrictive practices of .CA cyberwarehousing and cyberpiracy has largely not been a problem in this country. In general while trademark owners were not happy with the restrictive .CA policies, they were consoled by the fact that it was unlikely that any third party would be able to register their trademarks as domain names. Because those third parties would also be forced to comply with the restrictive practices unless they went out and registered a corporation with a similar name, it was pretty unlikely that the famous trademarks would be taken up. As a result and the last time I checked there are many marks that one would probably consider as famous being still available in the .CA domain, marks such as Exxon, Montreal Expose, Ralph Lauren etc. Our concern was that as CIRA moves to a full first-come, first-served system of registering domain names it will open the flood-gates to the registration of domain names. That there may even in fact be a gold rush mentality towards these domain names that for the most part still remain available. Trademark owners who were previously barred from protecting their registered trademarks as domain names under the closed system may be prevented from doing so because a cyberpirate will have applied for the domain name first. In our opinion it was unfair not to allow trademark owners or owners of other rights and names, corporate names etc. some sort of transitional period to enable them to protect trademarks that they otherwise could have protected if not for the proceeding restrictive rules of the .CA domain. And so, in thinking through the problem we have come up with a proposed solution, the details are still being worked out and debates are being held through the PTIC Council. But in summary what the proposal deals with is providing some sort of a transitional period moving from a closed system to the open system and setting up some sort of a stock list of registered trademarks, corporate names, what have you are rights holders who essentially have a stake in the name. And during that transition period, if an applicant for a domain name were to apply for a domain name that is on that stock list, such registration would not go through unless that individual or entity was either the holder of that right or was somehow authorized by the right holder to obtain that domain name. We also felt we that we should select some sort of an equitable cut-off date keeping in mind the announcement of the change in switch over so as not to allow for abuse. In our submission this proposal would allow us to transition with a minimum amount of conflict from the closed system to an open system and would hopefully discourage the most egregious forms of cyberpiracy. Thank you.

(Mr. Christopher Gibson): Thank you Elliott Simcoe. We now have a coffee break and so I think we are essentially on schedule to take a fifteen minute break. After that Elliot Noss raised the idea that we have a great opportunity, and we do have a great opportunity after that to go into this report in some detail and look for comments on the various proposals as we have started to discuss them throughout it. So, that is how we will proceed afterward. I did not see that anyone else wanted to make a presentation at the outset of the meeting. Okay, so a fifteen minute coffee break.

(Mr. Don Heath): By the way Mr. Chairman it is Don Heath, I just wanted to point out that as a great example of the incredible hospitality of Canada, they have converted their clocks here to Central European Time, the time of Geneva for you.

(coffee break)

(Mr. Christopher Gibson): We have an hour before lunch. Lunch will be at 12.30 and I would like to keep it on schedule. So what we will go ahead and do is we will start with the Report. But before we do so, Mike Roberts of ICANN said he had a couple of quick comments he wanted to make, so we will ask him to come up and make a brief set of points.

(Mr. Mike Roberts): Thanks very much. I would just like to say that this is a very useful morning to the extent that I have a capacity to take back to our Board some of the flavour and the constructive ideas that have been presented here. I will endeavor to do that. As I indicated many of the things you are talking about here will find their way before the ICANN Board over the next few months. And we also have a lot of people that are in a hurry if you will to get moving because they recognize that for better or for worse the U.S. Government sat on most of the policy agenda that we now have in the Internet for five years. So, we have this big bump in the rug. Two quick points, one is relating to what Michelle said and I have heard from a number of other Government ministers in France, Australia, the European Commission and that is there is a really extraordinary recognition on the part of Governments that, if they expect the Internet to grow and to foster electronic commerce and all the potential benefits the economic development that are potentially there, the Governments need to stay out of this. On the other hand, they are not very far out of it and many Governments have a historical top-down regulatory attitude about a lot of the things we are talking about. So, the comments that I get made to me by Government ministers go along the lines of "well, I sure wish you folks well, and we will sure try to help you, but" and then there is this slight hesitation, "if" and then there is some words to the effect that, "if you screw up we are going to take this all back in a hurry". So, in a room full of lawyers as Jonathan has reminded us you know the duty of a lawyer is to represent his or her client and that frequently leads us into well developed adversarial positions. We are not going to solve our problems and keep the side of the clutches of Governments by getting absolutist about the solution space. We simply have to recognize going into solution space here is going to require compromise on everybody's part. And I think one of the areas where we ought to all think carefully and specially in the subject you are discussing today, is how precisely can we identify legitimate damage that is being done and how focused can we make the remedy. Because the more we get off into rhetorical generalities that for instance a lawyer might want to do to protect the range of interests of his client the more trouble we are going to have in creating a community consensus around the measures and the guidelines that we adopt.

Second point I want to make is I need to remind people about this business of the creation of new registries. A couple of salient things that are not well-known and certainly have been represented by some people who have their own self-interest in terms of things that we are seeing on the Net. Although, there has been a lot of sentiment over the past several years that there should be new TLDs there is certainly nothing approaching concensus on what they should be, how they should be created, when they should be created. The creation of ICANN does not have any pre-conditions about the manner in which new registries will be created. We have a lot of background, we have a lot of material out there, but fortunately for us there isn't any directive from the U.S. Government or anybody else that says "thou shalt create new TLDs". I think on the other hand, working with a community and looking where the community is coming from is pretty clear that it does not make any sense to try to create new registries until some of the obstacles, some of the pot holes that we have encountered in the last few years are dealt with. And certainly the protection of rights in the creation of any new registry has to be a precedent and an antecedent issue. So, I certainly in terms of, as I see the Interim Board going forward and as you might imagine I get a lot of e-mail that sort of along the lines of "when are you going to give me a new TLD". And the answer to that is "the Board will consider this matter in its home-work agenda". I think one other mistaken notion that is out there is if we get passed the WIPO Process and if WIPO says its okay for there to be new TLDs, its a slam dunk and the arguments are over. That is certainly a misapprehension out there. And one of the first two lectures I have gotten in my short tenure as the interim president is from the competition people in the U.S. Government and from the competition people in the European Union is don't even think of creating another quasi-governmental grant of monopoly registry power. What we have heard from Michelle, what we have heard from everybody is your job is to create and promote competitive conditions in the Internet Domain Name System. And so, whatever we do about new top-level domains, one of the clear antecedent requirements of that is that we don't make what appears to be a monopoly profit grant. Now there are a lot of mechanisms for dealing with that and we are going to hear a lot of input on that, but I just wanted to sort of get that message out there because we are no longer if we ever were, we are no longer in an Oklahoma land rush approach to the creation of new TLDs. Thanks.

(Mr. Christopher Gibson): Thank you Mike, and let me just draw one parallel in the context of WIPO which is you made the point that the Governments have suggested that while they are very positive about the developments and the Governments themselves have stayed out of this, they are not that far out of it. And I would believe we felt and in our consultation process which led up to the approval of this WIPO Internet Domain Name Process in mid-September we had some similar discussions with the Governments involved in WIPO. They have other ways that they are quite accustomed to in dealing with WIPO and in addressing matters of intellectual property, and this is viewed as something different. And so in that sense, we too feel that there has to be a degree of trust and a degree of practicality as we go forward and caution. Because these Governments do have some of that sense that there are other ways to approach this same set of issues. What I would like to do now then is turn to the report itself and as we go through it what I would like to do is we address a number of different issues is hear from a number of speakers, but I don't think that it is realistic to think that we can draw closure on any particular issue. And I will try at times to move the discussion forward after we have heard at least one or two or three interventions on a particular topic or issue which shows some of the different perspectives that might be taken. And in order to try to accomplish going through all of the various different proposals in the different areas this will be necessary.

So, I will start with Chapter II which is addressing Best Practices for Registration Authorities. Obviously there is quite a lot to be said about how registries want to operate as a business and our approach was to make sure that we try to confine the topics that we dealt with to those that seem to have quite an influence on the rights of intellectual property holders. And in that case what we did, I am turning now to page fourteen of the draft I have. I should I suppose refer instead to paragraph numbers and paragraph 43, we have highlighted that there are four main parts to this Chapter: best practices for registration authorities, the availability of information relating to contact details, dealing with false or inadequate contact information and finally this problem of uniqueness, but in particular a review of certain technical measures that are out there that can sometimes prove useful for the co-existence of similar domain names.

The first area that we approached is simply the formalization of the domain name registration agreement. And we heard from both Phil Sbarbaro this morning as well as from the Canadian perspective that in fact it isn't always the case that a contract exists when a domain name is registered. And so our first recommendation in the Report in paragraph 46 is one we hope is viewed as non-controversial, in that the relationship between a domain name registrant and a registration authority be fully reflected in an electronic or paper registration agreement. The rationale behind this is so that the terms and conditions are more fully understood. And this is something that I think more broadly speaking goes to the seriousness with which parties engage in contracts or electronic contracts on the Internet. And it is something that goes beyond the area of domain names. But in particular in this area as well it is our understanding that a contract is being formed and people need to understand that and they also need to have an opportunity to see what the terms and conditions are. We are aware that also in this area there are in a number of countries consumer protection laws. Laws that would make it clear that certain provisions have to be there or have to be spelt out very carefully so that consumers have a chance to understand them. And given that the nature of a domain name registration which can occur as I said last night in a brief speech by an individual through a website with no intervention from anyone else. It is quite important that they have an opportunity to see what it is they are agreeing to. And so, this is the first recommendation. I would simply ask if anyone wants to comment on this point about the formalization of the domain name registration contract. Okay, what I will do as I go through and say does anyone disagree with it, does anyone see any other area or issue of concern as we go through some of these recommendations.

(Professor Michael Froomkin): Chris, can I just ask a question. Are the arbitration procedures going to be part of the contract or do they need to be translated into the local language in every place where there is an ISP? And in the event of divergence between the translation and whatever the official language version is what happens if it is given as a contract and not a treaty? Just one of those things I was wondering about.

(Mr. Christopher Gibson): In this Chapter we mentioned that we think that there should be some terms of agreement with respect to dispute resolution and jurisdiction. It would be the case that as certain standards might come into play if there is any measure of harmonization, it would then be left of course to the local registration authority to determine what language it wishes to operate it and how it would want to express terms in a contract that might be consistent also with local law. So, in that sense at least from our vision we are not suggesting that there would be any centralized contract. But that the businesses that are in this business of registering domain names will have their own contracts and they will provide those contracts in the language in which they choose.

(Mr. Rob Hall): I might just like to address if I could just some of the things you want in a contract and what are the specifics you said you want in a contract. I agree that you probably should have the requirement that the applicant provide accurate information. As to anonymity whether the domain holder should be allowed to be anonymous and act through an agent, I am not sure you will be able to prevent that in certain jurisdictions, so in fact the corporation could be seen as holding a domain name on behalf of someone else or its use might not be that of the primary corporation etc. So, I think you may have to allow agents to register on behalf of clients even though you might strive to try and find who the end user of the domain name is. The agreement that information is provided has helped for limited purposes of facilitating contact as your statement. I am not sure I agree with that. There are other purposes such as billing and administrative purposes and you may not want to limit yourself to the fact that you are taking this information just for facilitating contact. So, you may have to open that clause up a little bit.

Domain names should not be activated until the registration authority is satisfied fees have been paid. When you get into a registrar model I am not sure that applies as well. For instance if I am acting as a registrar and I am responsible to the registry to pay, do I have to then wait as a registrar until the domain name holder has paid me? Does that mean I have to take electronically instantaneously? Can I not then bill my client? Who is responsible for the payment to the registry I think is an issue that may need to be defined.

Availability of information relating to contact details. I think you want it unrestricted and open. I can't think of any reason you would want to restrict access to who owned the domain. Certainly with the information you have you certainly would restrict payment information and that type of information but not the contact information. And dealing with false or inadequate information. You said that you wanted to implement take-down procedures if the domain holder cannot be contacted. Contact the person actually is the word you used. If you allow agents, the agent may say I have no authorization to take this to my client unless it is concerning these specific circumstances. That should not be seen as ....... to contact. I think you even contact the agent or anyone associated with it that should be seen as contact and not an issue to take down procedures on a ............... I think that is all the comments I have. There is one on the waiting period. I think RFC is already rejected but I may be getting a little ahead.

(Professor Michael Froomkin): As we go through this and this question of agents has come up many times and I would be interested in hearing what interests are harmed by allowing agents. I mean if you have someone to contact, you know for technical purposes with the agent or the principle does not make any difference. You have someone to contact for suing somebody does the agent or principle matter? I mean what are the interests at stake here? I am not entirely clear I guess.

(Mr. Rob Hall): I would be concerned certainly that the agent would have to be clear that they are taking on that liability if you have it. That if you are contacted on behalf of this other person you have the responsibility. I think lawyers and certainly legal experts certainly are familiar with that type of liability and that responsibility. I am not convinced that the small ISP who becomes a registrar is aware of his legal obligations to contact a client. So, I think it may have to be very clearly spelt out in the contract that if you are acting as an agent these are your responsibilities. If someone does present you with a suit on behalf of your client you have to get it to them within a certain time. Because the agent model we use where you are representing someone else like a lawyer is very different from the agent model of a registrar acting on behalf of you as a client.

(Mr. Christopher Gibson): Let me bring us back to the text and say that in paragraph 51 we have requested further comment on this idea that if a domain name holder wishes to remain anonymous they could supply contact details for a designated agent, who would have I believe the responsibilities that Rob Hall just mentioned so that if the contact needed to be made it could be made through the agent. And there are a number of rationales for this kind of, one would be, for example, companies that have for reasons of strategy and business they don't want to be clear about who is registering a particular domain name. Because they don't want to be known that they have a product they are going to launch or something like that. So, they could work through an agent. There could be other reasons why an agent would be viewed as a useful mechanism but then it would have to be carefully and clearly defined what the responsibilities of that agent were. Because the contact point would now not be the domain name registrant, but the agent him or her self.

In approaching this topic of contact details, let me back up and just say that there was a very widespread and strong support for the idea that we need better contact details. This was heard quite clearly and it was viewed as one of the most effective ways - it seems like a simple measure - but it was viewed as one of the most effective means to improve the current situation. So that if there is an alleged infringement the contact details are there and they are viewed as being effective. The approach we took in thinking about this topic was first of all to distinguish between the collection of this information and making this information available to third parties. We suggested that the purpose of collecting this information is two-fold. One of which is to facilitate contact with domain name holders. But the other would be to, it should be what is necessary to further the transactional purpose of the domain name registration agreement. So, in this way I think I would sort of modify what you were saying Rob, because in that sense we understand that registration authorities would be for their own reasons wanting to collect this information for payment and other reasons. I think where we are trying to determine what a logical line would be is we want to make it clear and there is a term that we have suggested in this report, a proposal that if we use for these purposes and that it not be something that can be viewed as being freely shared with those that would be in the advertising or the spam or these other areas, that there would have to be expressed permission before this information is shared with those kinds of entities. In addition, we also in this area raised a topic that we come back to in Chapter V which is whether it is useful to have some level of differentiation for a non-commercial domain where some of these same requirements would not apply. Now, if you look at paragraph 50 we have listed out what we thought were some of the useful details that would be collected by a registration authority. None of these things I think are particularly surprising. You have the name of the applicant, the address and so forth. Does anyone have a comment on this? Is there something that should not be on this list? Or something that should be on this list, but is not included?

(Rob Hall): You have the name of the authorized person for contact. You may want to break that down as it is currently done to billing, technical and administrative. You may want to break a further one out for litigation disputes or if there is a dispute contact. Because often the admin contact is the owner of the company who isn't the person to contact for purposes of you know I think your infringing my trademarks. Maybe a legal contact would be a way to go as well.

(Mr. Christopher Gibson): Let me comment on that and come back to you with a question, because we have seen obviously that and I could perhaps ask this question from other members of the Panel of Experts or the audience. We have seen that in the way certain contracts are done there is often a breakdown between administrative contact billing, technical contact. In addition, another subject that is related one which we doubt within here is agent for service of process where we recommended that not be a routine point of contact to be included in the contract. For reasons that it seems like an overkill measure, because most domain name registrations are not for purposes that would be for infringement. So, we would not suggest that at the point of a contract when someone wants to register a domain name they would have to think about indicating who their agent would be for a possible service of process. But for the other points I guess my question is to try and achieve a better understanding of whether it is useful to have that split or whether it can be something where you have a more consolidated approach. And I know there are people here that have a lot more experience on this issue than I do.

(Mr. Rob Hall): I certainly think it makes sense to have different contact points whether they are mandatory or not maybe, and maybe I don't want to put in who are legal representation is in case there is a dispute. Maybe I put it as the company. But certainly I think the fact that the owner of a domain name for a large corporation tends to often to be the person who registered it. It may not be the President, it may be an employee who is no longer there, just happened to do it years ago. I think the technical contact is very different and has different priorities and maybe they should be able to modify certain information and not other information within the domain name. For instance, the technical contact may be allowed to modify name servers but not ownership information or adverse information. Billing probably should be hidden. I am not sure why there would be a need to give away billing contacts probably, but certainly if you send a bill for $35.00 to the President of a corporation that is probably not where it should be directed in most cases. So, there may be some reasons to have these different contacts whether they are public or not is another choice.

(Mr. Donald Heath): I am just going to say that in the WIPO document, let's put it this way, the registry or the registrar in particular will probably ask for a lot more information than is prescribed here. But in this document I think we are trying to define the minimum sub-set of information for purposes of intellectual property disputes and so on. But I would agree that the technical content, the registrar is probably going to want that.

(Mr. Michael Erdle, Lawyer, Deeth Williams Wall): And you may want to consider a legal contact as well. I am Michael Erdle and I am the Chair of the PTIC Domain Name and Trademark in the Internet Committee. And so just further to some of the things that Glen mentioned earlier, our Committee thought that it would probably be beneficial to also include in the information a statement as to the nature of the applicant, so a general description of the applicant and in particular if the applicant is a business, the nature of the business. It won't always be the case if the applicant is a business of course, but it would be useful to have even in general terms that information and have that researchable by someone who may have some concerns about the name or other possible use of the name. In addition, we thought that it would be useful to have a requirement in the registration process that the registration information be kept current. Because I think that has been one of the biggest difficulties in trying to make contact with people. As Ron mentioned the original application maybe made by a technical person who six months later is no longer with the company, can't be contacted, there is no alternative. So, having multiple contacts is useful. But I think even more useful is a positive obligation in the original registration contract itself to keep the information current. And some consequences which we will come to later I think when we talk about what the remedies are is that if the information is no longer current that there be a different remedy than if the information was false or intentionally misleading in the first place. If it is intentionally false or misleading that may be grounds for immediate revocation, but if it is just simply the information is no longer current it may be grounds for suspension until it is made current and the records have been updated.

(Mr. Christopher Gibson): Let me ask a question on your first point which is what would you do then in the case if you are suggesting that it is useful for the nature of the applicant to be identified and in particular the nature of the business. What would you do in the case of let's say certain businesses, they want to register domain names but they don't want to yet disclose the fact that they are registering because it could relate to a new movie that is coming out, a product line or something like that. So, how would you treat with that situation, if they were for example working through an agent?

(Mr. Michael Erdle): The issue of agency and anonymity I think is an initiative that we have not fully come to grips with yet. I think the general inclination is that the information should be available, and we are not in favor of having anonymous registrations. But our concern and one of the things we want to get today some more information from you about what was the rationale behind that. You have now given us several points to think about. Including businesses that are looking at a product launch and have some motivation to keep some of the information confidential. But there maybe an inherent decision point where when it comes time to register the domain name then they can no longer keep it confidential, then it is out there. And there has to be some information about who has registered that name and perhaps some information about the reason why they have registered the name. I wouldn't think that the description of the business or the nature or the use has to be so specific that it is being registered for a movie or for a specific product. But I think that there is some use to having information about the general nature of the business.

(Mr. Ken Fockler): We have just got started and we are into a lot of detail. I would just like to comment that almost going back to something Mike Roberts said about new top-level domains and not doing them until the pot holes ......... I certainly agree with that concept, but I think we need to keep our mind open to if we have some administrative procedures there, that in order to get to where we want to go there may be a role for some top-level domains or some other ways of setting up a new dewey decimal system or whatever for cyberspace, because when I hear these discussions I try to test them against situations such as my daughter wishing to have a domain to express her cookery, so it is something like that. And whether she either has an option or it turns out to be mandatory to state the nature of her business, her agent for service of process in a number of these things it is possible perhaps that in some future world there may be areas where the rules might be a little lighter for somebody like that. And I notice you said if it is a business, which is good and we need some of those kinds of things in there. Now, I also acknowledge and often argue against people taking the position that there are easy ways to get websites and e-mails and you don't have to worry about domain names, and I think smart entrepreneurs would develop some of those as well. But the Internet being what it has been and continuing to be, I don't want to foreclose the option with a lot of heavy-handed things that say Joe an individual person just can't have a domain name. Or are we making that decision? So, every time we go through some of these things I test it against that.

(Mr. Christopher Gibson): There is a comment from Mark Partridge, then Michael Froomkin, then Phil Sbarbaro and anyone from the audience.

(Mr. Mark Partridge): One of the issues we have wrestled with in these consultations and reviewing the comments when working through the Report is the tension that arises in this area of contract details. From the fact that not only is the Internet used for commercial users but it is used for communication. We are mindful of the desire to avoid restrictions on communication and one of the questions I guess I would put to all of you to comment on is consider this the contact information in that light. Does it in any way pose an undue, unnecessary barrier to communication and to echo kind of what Ken says, if it does are there reasonable alternatives where people can use the Internet to communicate without adopting a domain name. Do they have alternatives that allow for the kind of free communication that we want the Internet to foster. Therefore, Ken gave the example why he does not want to have his daughter perhaps disclosing all her personal information if she wants a domain name. There also could be situations where political dissidents want to use the Internet and do not want to disclose contact information. So, the question out there to all of you is look at it from that perspective does this contact information impose any barriers that we want to avoid in that light. Or are there alternatives such as just not using the domain name and working through some different service that alleviates that concern? I raise that question in hoping that during this Process we will get some more comment on that may be not just today, hopefully today but throughout the remaining weeks of the Process.

(Ms. Margo Langford, Chair, Canadian Association of Internet Providers): Margo Langford and I am Chairman of the Canadian Association of Internet Providers and with IBM Canada. I was just going to add a sort of a practical solution to the corporate contact information and I will give an example of why and how it is protection for the corporation as well. Corporate e-mails are of course very portable and sometimes even when employees leave they are allowed to take their e-mail address with them. And we had an instance when I was general counsel of ISTAR where an infringement which happened to not be a domain name infringement, but the Internet was used as the contact point for the server on which the infringement was located went to the person who registered the domain name for that particular customer. That person had left the company, but she was allowed to take here e-mail address with her and we had five days to respond to the seize and desist order, and we did not even know about it because Conny was away and her private e-mail of course was not answered and so forth. And so we got around that and in each instance after that and put the contact name as a generic and always the person who sat in that job then found that mail. I mean it is common and I know I am talking to most people who understand this, but for those in the room who don't, you have a system's admin at ISTAR.CA, you have an abuse at ISTAR.CA, you have legal at ISTAR.CA, so all of those things that are of concern to legal were coming then to me and if you want a point of contact you do something generic even if it is president and if that is the only person if it is a one-man company. Maybe the president might change and so that is the practical suggestion on contact names staying current. In particular, I think e-mail is going to be the way people generally contact you. But even if it is not, even sending snail mail to legal at ISTAR would be a better way to make sure that they got to where its going.

(Professor Michael Froomkin): I wanted to invite our earlier speaker and anyone else who is interested to tell us a bit more about what the practical benefits are of asking people to give a purpose. Because as you have heard there are competing considerations, trade secret considerations, human rights considerations, the burden that might impose on private parties. And I ask this as a law professor, because I think back to corporations on the States where long ago unless you have to give a purpose when you formed a corporation that pretty much went out the window and people now have it as a standard form for all lawful purposes. So, are we going to have a regime in which people can't put down to exercise my First Amendment rights for all lawful purposes. I mean if I am doing this for a client I am going to want to do something that requires the least amount of work for them if they change their line of business down the road. If they set up making widgets and they turn into an art auction house you don't want to have to go through and change the DNS registration of have somebody pull through them because nobody remembered twenty years ago they registered as a widget company. You are going to put down if you can or for lawful purposes. So, I guess if you are talking about preventing people from doing what the legal reflex does, I would like to know more about what the countervailing benefits are.

(

Mr. Christopher Gibson): Thank you Michael.

(Mr. Brian Gray, Lawyer, Blake, Cassels & Graydon): My name is Brian Gray and for the last four years I have been Chairman of the Section on Intellectual Property at the International Bar Association. And also I am for a longtime a trademark lawyer. So, I can speak to these benefits or non-benefits of the name. I think the issue of the confidentiality which Mr. Gibson mentioned is really not an issue. I mean trademark owners are very used to reserving names through the intend to use system or the proposed used system that we have in Canada and the ITU system that exists in the United States. Under that system you have to identify yourself, and you have to identify the trademark and you have to have to identify with some particularity the goods and services that you are seeking to obtain priority registration for it. So, for instance I act for Columbia Pictures for instance and other Hollywood Studios. They file applications with the names of their movies identifying the names very early on. They do that because that is the only way that they can do that to reserve the trademark. And so I don't think you really have to, that is not the concern. I think the real concern is the one that you raised, Mr. Froomkin, that once you identify the business, and it would be a very great practical benefit to having the business identified let me give you that first and then I will explain. I think there is a problem with the fact that things change. Trademark owners have to clear trademarks all the time. They pick and clear these trademarks through the searching and what is coming up on searches are trademark registrations and applications all over the world. There are now of course also Internet names. Now, an Internet name is a complete mystery to a trademark owner. It is a name without any association of any goods and services. The traditional law of course has been that trademarks are only reserved not in gross but in association with some set of goods and services. So, it is a mystery to a trademark owner when you see the Internet name you have to assume it could be for any particular goods and services including the particular ones that the trademark owner is seeking to adopt. So therefore, you have to make further enquiries. So, the advantage of having a list of goods and services or of a business attached, if it is a business, or if it is not a business just to say it is not a business would be tremendously advantageous from the point of view of clearing names in those jurisdictions. And Canada and the United States are two of them which are common law jurisdictions where the prior rights are created by use. And of course there are questions as to whether an Internet use is a use and what kind of use it is and whether it is a use in Canada and all those sorts of things. But a prudent trademark owner just assumes that it may create prior common law rights. So therefore, would want to know what the goods and services are. So, I think the advantages are there and I don't think there is a real concern too much about the confidentiality as a practical matter. In any event you could use agents and therefore mask who is actually seeking to the registration. But I do think the point that you made Mr. Froomkin is the right one, that it could be misleading because if the information is not kept up-to-date to give a list of goods and services, and show an Internet domain name registration with a list of business activity or some kind of list or services or goods or business area or however vague it is. And if that is not kept up to date then it may in fact be completely misleading. It wouldn't really reflect the change. So, if you were to include this information it seems to me you would have to have some kind of procedure for updating it, or some kind of penalty if you went into an area where you had not listed on your form. And that creates it seems to me some administrative difficulties. So, I am a little bit uncertain about what I heard Mr. Bloom's recommendations from the PTIC, I thought as a trademark lawyer that makes eminent sense. But, I am not so sure now having thought about it exactly how that would work out in practice if the area in which the user was in changed or evolved. So, that is just made in my comment.

(Mr. Philip Sbarbaro): Two comments. One on the disclosure or the balance of disclosure and one on the increasing of disclosure. Exxon Mobile merged. Two days before it merged and it was public about 25 domain names showed up in Network Solutions that said Mobile, Mobile-Exxon, Exxon-Mobile with hyphens in between, with different spellings, with zeros instead of o's. The moment you do file an application with the PTL there are those who are sitting there watching it and waiting to register the domain name. So, it is a definite problem. The basic tenet of this whole section is I am a trademark owner, I will contact that person. If you don't make it easy enough for me to contact that person I will sue you, make no bones about it. And that is what has occurred. So, the data has to be there, a sufficient amount of data so that the trademark owner can contact the registrar. Balancing what you disclose versus OECD guidelines and the new European guidelines on privacy is impossible. If you add the purpose, or here is a purpose. Exxon-Mobile purpose of registration to engage in cyberpiracy. I mean you are not going to put that down. So, you are going to get garbage in and there is garbage out anyway, it is not going to work. But if you require the purpose or the nature of the corporation, then the registrar get pulled in and sued for contributory infringement. Because knowledge or imputed knowledge is the exact element of contributory infringement upon which trademark owners sue registrars and registries all over the world. So, small little companies like Motion Picture, Academy of Arts and Sciences sued Network Solutions and said "see you had a purpose line and the purpose line had garbage in it, but see you had a purpose you knew of the purpose of that registration you are liable". So, if you look at our registration application now you won't find a purpose line. I don't want to know the purpose, I don't need to know the purpose, it is going to be garbage anyway. So, just a thought.

(Mr. Christopher Gibson): I think we will give Glen Bloom the last word on this and then what we will do in terms of is, what I would like to do is to stay on this topic to move it after these comments towards the back end of this section where we talk about how access is provided since we are on this topic. We had a couple of proposals there and it would be useful since we are on this thread to have comment on that. Glen.

(Mr. Glen Bloom): I just have a comment about the, to fall off with Brian Gray the information that is provided on the application can be up-dated on a periodic basis with a re-registration. So, there would seem to be a mechanism that could correct any change and purpose down the road.

(Mr. Philip Sbarbaro): If the information on application is, if a trademark owner can't find a domain name holder, made the phone calls, looked for the address, perhaps sent a process or whatever, can't find it. And Network Solutions is advised of that as a registrar or any registrar for that matter could employ the same concept and the same procedure, we will contact them ourselves. If we can't contact them, they will get a letter that says "I am sorry, it has come to our attention the critical information in your registration is inaccurate, you have 30 days to correct it or you are gone". Again, that is not the third party who has the rights to do that, that is the contractual relationship between the registrar and the end-user. So, once alerted the registrar, the registry whichever concept you want to use gets their obligation and then it is a one on one contractual relationship and it works out fine.

(Mr. Mike Roberts): Because there has been some confusion I want to make one point of clarification that goes back to scaling issues with the Internet and that is historically years ago. An Internet, an IP address found by conversion from a name was really an operating host on the Network. And so the original database, information databases served both operational and administrative purposes. And now that we are in a very much bigger Internet and in fact we have specific advice on the White Paper about giving attention to the operational stability of this much bigger Internet and we have a Root Server Systems Advisory Committee, going to start working in March and April. We are really moving in the direction of a segregation and probably a physical separation of operational tables that drive the routing system of the Internet from administrative information. For instance, we don't want a situation in which there is public access to a real physical file that has anything to do with operational routing of the Internet. I mean they are just fundamental vulnerability issues associated there, that we don't want to have to deal with. So, I believe that from an architectural point of view this does not imply a diminision of efficiency and operational integrity, in fact an enhancement of it. But to the extent that there is some issue about well does the information that the registrar is capturing going to be in a registrar file or a low-level registry file that has something to do with real time operational ............ the Internet, the answer to that is no.

(Mr. Don Heath): There is a benefit to have as much information as possible and any trademark lawyer can show you the advantages why that should be there. But of the millions and millions of registrations that occur on the Internet only a few present a problem. For instance, of the 4.8 million .com registrations AOL is one, AOL.com. AOL.com has 15 million users. I have five names under AOL.com. If each of the 15 did that there would be 75 million, I don't think it is that many and not all of those apply. Now, the cost benefit ratio therefore has to be considered in this thing. And if you want to burden or overkill on all the registrations that don't really count, then that is putting too much of a burden on the 99.9 per cent of the registrations that occur on the Internet. So, what we are really trying to correct here is the minimal part of it. That does not say you should not do it all, because it is minimized, but it does say you have to keep that perspective and therefore keep it as simple as possible and only take the minimum that preserves privacy, protects the rights and the benefit that the burden you would put on the majority of the users is minimized.

(Ms. Anna Marie Labelle, Counsel, Commercial law Division, Industry Canada): This is Anna Marie, just to pick up on what Donald was saying and also Philip, you referred to the OECD Guidelines. Here in Canada we have a Bill before Parliament dealing with protection of personal information. And at least at the federal level many federal industries have already implemented the CSA standard which is for the protection of personal information based on the OECD Guidelines. So, even though many of the registrants are in fact corporations you will still have to look at again what Ken was saying, many of them are individuals, many of them are sole proprietors or individuals acting in partnership with other individuals. So, their personal information which is a corporate information is also their individual information. So, for CIRA I would think it would be a concern for the Board to consider how they go forward, what information they are going to require their registrants to provide because you should only be collecting that information you need. You should be identifying your purposes while you are going to collect it. And I would also think that at the international level ICANN and WIPO will also be considering what recommendations they made because the OECD Guidelines do exist, the European Directive is there, is in force depending on the country. So, I don't think it is something that we can just say is there and you can't necessarily fit it in. This is happening, it is happening in Canada so if I am going, I work for Don Canada and if Don Canada is going to become a registrar at one point, it is part of our existing code right now and it will be part of legislation so I think it is something that we really do have to consider and try to protect trademarks, really you will have to feed that in to the extent that you can into the purposes while you are collecting it. But, it is almost a secondary purpose rather than a primary purpose of collecting that information.

(Mr. Christopher Gibson): Thank you. Why don't we turn then to this issue of how the information would be made accessible. If you look at the report starting on paragraphs 79, you will see that we have as I have mentioned earlier distinguished between the collection of this information and then making it available and how to do that. I should point out that the commentors in the Process during the fall universally agreed I would say that databases are helpful. That such databases are helpful and we also have already touched on the topic of where there may be issues of anonymity and designating an agent may also be a useful matter. But what we have suggested now is two approaches. One is to simply making the information in this database available in an unrestricted manner. The second is what we have suggested is filtered access to these databases and we have two options under that approach. One would be to provide an online form which needs to be filled in by the person seeking to get this contact information. They would put their own contact details and provide some list of justification for why they want this information. Once they have filled in that form there would be no review of the form itself. There would then be an automatic response that would allow them then to gain access to the information that they requested. There would be a simple process of allowing the person to simply identify who they are and why they want this information. A second approach that we have suggested is that again this kind of information a search be made and if it is found that there is a search in a domain name that someone is interested in they would then put in an inquiry and they would get the information of the registration authority involved and then they would have to deal with that entity, that company to ask for further contact information either online or off line. So these are two filtered approaches. They are in contrast with the other main alternative which is unrestricted access to this database information. So, I would like to hear comments from those here on these various proposals.

(Mr. Elliott Simcoe): Hi! I am Elliott Simcoe. Stepping back just a second with respect to the searchable database, I am wondering if we can consider something including language with respect to secure searchable database. We have heard of instances and we have been made aware that our firm of instances where third party providers of databases, I guess they would ultimately tap in to the Internet databases perhaps keep records of what your searching and when you are searching and perhaps themselves use that information in a manner that they shouldn't and so perhaps the security of being able to search this database without disclosing what you are searching which could in fact disclose the type of confidential business information that you were concerned about earlier.

(Mr. Rob Hall): As a practical matter I think there is no way to have a form that someone would fill in and expect them to fill in accurate information if there is no human checker, human process in it. So, I think if you put a form up and said okay tell me why you wanted it and I will be able to get you know the old typing lessons ASDF and just put something in and you don't know where they go. I just don't think there is any way to prevent people from getting access to the information. Smart programmers will write programmes that give you all the forms for the 3.2 million .com names and say give me the information. And if people want it they can get it by giving false information to get it. So, I am not sure that is a practical aspect of trying to stop it. Unless you put a human dimension in between which probably is not practical as well. Have you then put some more liability on the registry to say you gave them this information after reviewing the fact, therefore you have liability now you should not have given out this personal information. It may make more sense to make the contact information public and available to all.

(Mr. Shawn Tedder, VP Business Development, Researcher.com Inc): Shawn Tedder, Researcher.com. There are many services that are due who is, or already and is wide opened. Alexia.com is a browser based service that when you are on your browser you can see where you are, who own the site, address, phone number and so on. Domain.com, the guy in a 'Y' selling CDs he went into the whois servers and for days downloaded. Don and Bradstreet does the same thing. So, I mean business information is prevalent for years for marketing purposes and if you restrict access there will be somebody trying to hack into it and there is nothing that people can't get if they really want to. So, it should be freely available. Mrs. Langford has said that you can make the generics to solve that, that was a good solution where the administration contacts always change so they would have that facility. That is my two cents.

(Ms. Margo Langford): I just wanted to give a sort of an unexpected comment perhaps. We are trying to work with content providers in helping them enforce the rights on the Internet. And one of the things we have been saying to them consistently is "the Internet is transparent, you can determine where these illegal files are and you can find out on what server they are on and you can find out which ISP is hosting that server and therefore contact the appropriate party for notice and take down". So, if we then created a system where you could not actually determine the domain name location, it makes that whole system go away and suddenly we have a scalability problem on both sides for trying to help with in enforcement and clearly that is the idea of the WIPO goal, but it is certainly a goal of all ISPs as well to have illegal content removed from the Net.

(Mr. Christopher Gibson): From what I have heard so far I would say that there are those that say that it is just not practical to try and devise some sort of filters for this information. The information is already out there and that it is useful to have because the Internet is transparent. Is there anyone here who would suggest that there is, and I guess we have also heard from a previous intervention that there is the privacy directive of the European Commission and we have had an intervention from them. Does anyone else want to speak to the point of having additional filtering or why it is necessary?

(Ms. Anna Marie Labelle): Just to continue what I said before to take over further what you were saying Chris. It is not just an EU Directive, we have got it in Canada. The OECD Guidelines are there. Singapore is coming up with laws as well. Hong Kong has them. This is happening everywhere. So, if you are going to be collecting this information it is going to have to be part of your agreement that the registrar can disclose the information or will be making it available on this database. And if that is not included in the agreement, well then you can't disclose it unless you get consent from the individual and I am not so much concerned about business right here because normally policy guidelines apply to individual information. So, all of this has to be built into your contracts or else you end up having to go back and get consent. Now you can do that with implied leave versus express consent, but you really have to make sure that that is part of your contract or else you will have to go back to your registrants at that point for their consent.

(Mr. Christopher Gibson): Thank you. I am certainly not an expert from what I have read of the various new laws emerging and this is a new issue. The idea of notice and how that notice would be specified is as yet another alternative and it is a very important point. We noted in our paragraph 84 that it could be accompanied by a notice explaining that the information is being made available or being made available only for certain limited purposes.

(Ms. Michelle d'Auray): Just on that point because we are in fact in the process and indicative of presenting legislation or going through the process of examining legislation and protection of privacy. There are some very simple measures in fact to achieve or to obtain consent and to specify the use and disclosure practices for which you will be using the information. In some instances then the choice would be up to the individual or the company to determine whether or not they would wish to have that information disclosed. And then it would be an option of using a domain name's registration or not. And in some instances as Mike and I were talking earlier, if you are dealing with a domain name registration where you are dealing with either a sensitive issue such as abortion or you have got, you know where there is a possibility for you as an individual if you are the registrant where the contact person to be on the receiving end of a whole bunch of information, you may choose either to use an agent or you may choose not to go through a domain registration process. Because the cost then of having that information disclosed is just too high. So, the privacy issue then has to be balanced, but it has to be very clear up-front why you are seeking the information and what your collection use and disclosure practices will be. And that will be the law in many countries.

(Mr...........................): I think to try and restrict the giving out of the access for limited purposes is something we should be very careful of. If the registry is saying I will only give out your name and address for this use I think there is too many people in the world that would ignore that and use it for their own means. And the registry then may become liable in some way. So, I think to say that we will only publish this database internationally and freely, but you can't use it to spam people I don't think that will happen. I just don't think it is a practical matter that has any weight, any credibility. People will use the information as they want to say we are going to restrict the use of it is impractical.

(Mr. Christopher Gibson): I think we will go on for another five minutes and try to talk about one last subject in this area which is the consequences of providing false or inadequate information. I think this is the final step. In our Report we talked about a number of points. Two of them have already been raised. One is verification of contact details by registration authority. This is in paragraph 91. There we have suggested first the use of an online data validation mechanisms in real time. Simple mechanisms to make sure that mandatory fields have some data in them. And then secondly, a procedure that would be useful to provide an automatic confirmation of the existence of the applicant. And here it could be done by you sending an e-mail or by verifying the operational status of certain servers. So, I would ask for comments from those in the technical area particularly on these types of automated measures.

(Mr. Rob Hall): I don't think there is any technical measure when you are dealing with someone electronically you can say I know exactly who that is and I know where there are. It is just a practical impossibility. So, can I assure that the server, the primary DNS exists. Sure, but it is probably going to be an ISP in a lot of cases, so what does that get me. I mean the fact that an ISP knows who they are. Well, most ISPs probably could not tell you who their clients really are, they have never seen them face to face. Again it is a credit card number or most sign ups are done either electronically or over the phone. E-mail is the same way. If I give you a hot mail address saying moe.smith@hotmail.com, does that mean I exist? Does that give any invalidation to the information I have given you. I think as a practical matter it is almost impossible to automatically validate the information. Sure, we can check to make sure it is provided. If you give me an e-mail address I can probably say is it a valid e-mail address. But can I say it belongs to a specific individual who is representing themselves to be this corporation or this entity that is registering the domain. I don't think there is anyway to do that electronically at this point. And to require the registry, I am not sure how you would require the registry to do that. I mean that could be an impossible workload to go through thousands of domain registrations a day and say, yes I will contact each person by phone or by some other method or I will do it to make sure they exist as a corporation. I just don't know how to tie all that together to ensure that you are actually registering who they say they are.

(Mr. Christopher Gibson): Thank you Rob. What we are suggesting here of course is a very limited measures that won't certainly positively identify anyone. But that would for example make sure that in mandatory fields certain information is provided. Now, again it may not be accurate or correct information. But that is one measure and then the second one I think your points were very well taken on whether the server happens to be that of an ISP.

The other point that we talked about in this area is the requirement to keep the contact details up-to-date. There was an intervention earlier saying it would be useful to have that as one of the representations. We treat with representations in a domain name registration agreement starting in paragraph 52. Well let's just stay on this point. Our proposal or our view of this is that rather than have an expressed requirement, representation that contact details will be maintained in an up-to-date form we think that this would be logically taken care of at the time of re-registration. So, that if there is a logical point at which to test the accuracy its at the time when there is going to be a renewal or re-registration of the domain name, you would have to send out a bill or contact that person anyway for the re-registration of the domain name.

(Mr. Rob Hall): I can give you one instance of a client of ours right now who the e-mail address information on the domain is invalid. The name of the entity owning it is invalid. He has been having the domain for several years now, back since '95. NSI keeps sending out information saying update this domain. But frankly as long as someone is paying for it, you know we always think that we have to touch the client every year and we have to get valid information back from the client every year. Well, the contact information is within the domain itself, so that does not really point you to who it is. I mean the fact that you can get to webmaster at that domain and a valid e-mail address and you can communicate with the person does not really validate who he is, if it gives you no information on how to contact him realistically. And in fact, the fact that he can pay anonymously every year by sending a money order or in fact, I gather using a credit card would not be so anonymous. What I am trying to get at is the fact that we have to touch him every year. We do that now in some domains like .com and that does not validate anymore the information. It is up to the individual whether they want you to have the information or not.

(Mr. Ken Fockler): I am interested Rob, can you contact them though through this e-mail contact?

(Mr. Rob Hall): You would have no way to know you have contacted them. So, certainly you could send an e-mail, but has it gotten to them, do they have to reply to it.

(Mr. Ken Fockler): Do you re-register on any frequency basis or not? That you say the person has to pay, so if they take the initiative and find or (interruption)

(Mr. Rob Hall): What we are I mean as a corporate policy with Echelon we don't pay the Internet fees for someone. So, the Internet would contact them directly and say if fees are due they contact them by e-mail of course, so there is a contact. I know for a fact that for two of the years the domain was rather dormant and the e-mail bounced. Then what would happen is the gentleman would say "oh it is probably time to pay my Internet fees again". Phone them up and say I want to pay for this domain and they were too happy to take the money and keep it going even though the not all the information was correct, and there will be no contact information. So, to say that because we have this attempt to contact every year we will get valid information, it is not correct.

(Mr. Ken Fockler): I guess what I am also trying to figure out is whether there is any confidence that if you sent a notice are they getting it?

(Mr. Rob Hall): The physical address is non-existent.

(Mr. Ken Fockler): But an e-mail?

(Mr. Rob Hall): You have no way of knowing. If it was rejected by the mail servers you would certainly get a message back saying you could not contact them, but it is very possible that it is spooling into a mail box and he is not reading it. There is no way to know that the person behind the domain is actually receiving it and reading it.

(Mr. Ken Fockler): So, sending them a notice that you are out of date of something like that, and within thirty days we are taking you down, you don't necessarily have confidence that they have received it.

(Mr. Rob Hall): You would have trouble proving they were out of date. I mean you would have to do some due diligence that this actually exists etc., etc. You then have the problem of did they get the notice or not, but certainly you have no legal proof like in the case of a process server that they have got it.

(Mr. Ken Fockler): Yes, right. So, you don't want to be a system to abuse people who innocently are in that situation, but there may be some bad faith actors out there.

(Mr. Rob Hall): But I am not sure it is a problem necessarily. I guess if he was infringing a trademark, possibly there could be a problem but the domain existed theoretically there is possibly some contact information, but that would become a problem, I guess, if he started to infringe.

(Mr. Mark Partridge): I have a question for you Rob. What is your reaction to a kind of system where you wait to see if there is an objection if somebody contacts you and says I have a dispute with this person and I can't contact them - at that point the registrar makes the effort to contact them and if they can't contact them then that domain name registration is canceled and becomes available to the person who is seeking it?

(Mr. Rob Hall): I think you started on a path you have to be very careful on. So, what level of, contact do you, if you were the complainant and I was the registry what level do you have to go to before you can satisfy me that you have tried to contact him. Is that a process server, is it an e-mail or is it that the phone number no longer works? I would hate to see a large company because they have moved headquarters and their listing was wrong, simply the domain was given to someone else because they did not meet the 30 day requirement. So, there may be a burden of proof upon the person to say this is what I have done. Here is the due diligence, I have taken the ............... The registry then may, and I am not convinced it is a good idea, but the registry under your scenario would have some burden of proof to try and contact the person through whatever methods they could. Theoretically, it is an incurred cost as well, that would have to be borne by someone hopefully. Then, you have got the situation where you are saying take the domain away from the person who had it registered and it may in fact be an active domain. And I think what you would have to be very careful of is maybe there is some suspension for 90 days or even six months type of thing of the name. So, that the person could stand up and say wait a minute because I don't think it is often the one that triggers people. If you can't find them then you are suspending use of the name. Usually, it is kind of like a slap in the side of the head to say wait a minute something is happening. Certainly, if it is a large corporation they will be on it immediately. But to say that I am not suspending the name I am going to cut it off and give it to you right away, just because you can't contact someone, I don't think I would subscribe to that all.

(Mr. Christopher Gibson): Let me bring us back to the text here and then take a comment or question from Phil Sbarbaro. In paragraph 101 we have made a recommendation, in that we have said that domain name registration agreement should contain a term making the supply of inaccurate or unreliable information by the domain name applicant a material breach of contract and two, suggesting that he take down procedure to be implemented whereby, and we have listed some factors in paragraph 99, a certain type of notice is provided to the registration authority. In that notice you will note that the third party would have to indicate that there are a number of details, they provide their own details, they would have signed it, they would indicate they have a good faith belief that the registration and use of the domain name infringes, its intellectual property right. They would indicate that they have made reasonable efforts to contact the domain name holder using the contact details that were supplied by the domain name holder in the application that would be postal, telephone, e-mail, facsimile if applicable. And finally, they would indicate a statement, a good faith belief that the contact details are ineffective and unreliable and that no response from the domain name holder would be forth coming. What we have said then is once that registration authority has received the notification it too could attempt to contact the domain name holder. Following that, then you would have a cancellation. And I understand that what you are suggesting that it is too draconian to go for a cancellation, but that under certain situation it may be that you enforce some sort of suspension. The broader question that we have also asked in this context is whether this kind of action should be taken by a registration authority as opposed to subjecting it to some sort of independent form of review, whether that be the courts or an ADR procedure.

(Mr. Philip Sbarbaro): You touched on it Chris, while recommendation in 101 is very good and that is in our registration agreements. As Rob said, what we do is you regulate for the problem not for the millions of non-problems. If somebody happens to have inaccurate information and it does not affect any third party so what? But if there is a problem, the problem is called to the registrars attention and that registrar should do something about it and there is the provision in 101. Now, we did send one of those notices to SAIC, our parent corporation and to MSNEC, so things happen, but of course we caught them in time.

(Mr. Christopher Gibson): Michael Froomkin, and then after this I think we are going to have to take a break for lunch, as Brian Dillon is signaling me.

(Professor Michael Froomkin): In light of all these discussion practicalities I want to ask Rob Hall or anyone else about paragraph 67, which is the provision that requires that money be paid up-front for registering a domain name and I wanted to hear about two things which have come up at various points in the process. The first is, the validity of my own personal intuition that this actually solves an awful lot of problems. My intuition going into this is if you do one thing that would clean up more messes than anything else, this was it. If people disagree with that it is very important at least for me personally, I would love to hear that. Because then it concentrates my ................... amongst other things. The second thing is that there have been occasional murmurings mostly from technical people in positions like Rob Hall's, saying this is not a practical solution. I thought that it was, you know if you switch you just do it. But there have been some suggestions that are not as easy to tell. If certainly that is true I don't want to hear about that because again it seems to me like it is not controversial, we did not discuss it, that is probably one of the great things about it.

(Mr. Rob Hall): I can tell you certainly with my CIRA hat on for a second, this has been a topic of wide debate. We have the proposal of a registry with registrars and all of them actually doing the work. The registries have in fact more of a database situation. If we were to say that the registry must receive payment before we activate a domain, practically what that would mean is registrars would have to have a trust account with us that they registered them. But, worries me more is we were to say then to the registrars, you must receive payment from your client. I think a lot of corporations would be in trouble, because how do you, I mean as a practical matter, how do I get payment from a corporation? It can often take 30, sometimes as a business matter we give them 30, 60 and 90 day terms. Do we enforce them to give us a credit card number right away to register a domain? A lot of corporations will not do that. They simply say no, invoice us and we will get you the funds. So, what it does is it puts a barrier to registering a domain name that large corporations specifically and in fact individuals may have a problem satisfying before they are able to register that domain. Now, certainly the step we have taken in CIRA is the registry wants his money quite frankly. So, it will say the registrars are on the hook for it. So, if you have a bad debt from a client that is your problem. So, in fact the registry would be guaranteed the money although we have given the registrar a thirty day period to back it with a registration, to say wait a minute this is an error don't charge me, I can't track him down, it was frivolous, I am having some trouble collecting from my clients. So, that is sort of an initial registration. Then you get into the matter of re-registration. But, certainly on the initial registration to demand money absolutely, I think is just too much of a logistical problem.

(Mr. Christopher Gibson): I think we are going to have to close and move to lunch. Let me say that in this particular matter of pre-payment before the activation of a domain name, the comments that we have received almost universally said this would be a good thing to implement. But it gets to the point as Rob was pointing out, practically how can it be implemented when you have a chain of business entities that may be involved. And so we found that from a practical point of view it is very difficult to implement something that might work to solve this. So, while in principle we are suggesting that pre-payment is a good thing, trying to find a way to enforce that we find it more to be a matter of commercial risk amongst the various entities that are going to be involved as opposed to suggesting any concrete means to achieve that. So, it is an interesting thing where we found in this process that no one seems to dissent from that point, but the practical limitations are there. What I would like to do is after lunch we will go through a couple more points representations that could be in the contract in Chapter II and then we will move on to Chapter III and the rest. I think Brian will help us get down to the lunch area.

(lunch)

(Mr. Christopher Gibson): Okay, we have one other person who had requested to speak this morning and that is Shawn Tedder from Researcher.com who wanted to make a presentation, so we will start off the afternoon with this presentation and then we will resume with going through the Report.

(Mr. Shawn Tedder, VP Business Development, Researcher.com Inc): Yes, I am Shawn Tedder from Researcher.com and it is a website, a business and our mission is to make available plans of articles, papers, copyrighted I might add. Right now we are on a site which has a public domain and even a public domain has its own copyright issues to. To the world, the Internet world through our search engine that we have developed to suppliers, to help efficiencies and research. Now, we are also a portal service. We aim to promote other value adds such as research chat, discussions, personals, e-com and we also do domain registrations through Internet. Our target demographics are researchers from K.12 and under, colleges, universities and corporate researchers. The reason I explained where we are coming from it adds credence to why we are watching the market having less Internet access in some of our educational institutions, our libraries and domains which are being countered and our libraries and K.12 and under with products such as cybernanny, rotablocking, IPs from ISP and taking the URL locator bar out. Just recently I went to the science centre that we have here and at their Internet Cafe you can only do search engine. You can't type in the URL bar, it is gone. And that has been there for almost two years with corporate sponsorship. Now, the pre-determine educational sites roots are also filtering content and the point of this is as I propose, as your documents propose to allow high-level domains such as last year the seven high-level domains proposed last year and maybe add another one. Where adult sites could use such as porno.xxx and then it would allow the filtering and the disclaimers they have to put on their sites for different countries, different states and such. There are 4.8 million domains as it says in your proposal and there is only 400,000 English words in the dictionary. So, this is also too restricting for registrations. So, that is another argument for high-level domains. Seven more, or I propose another eight. Bill Gates even stated if he was researching the book 'Little Women' and search engine hits returned adult sites in the top ten, as one example. As I stated before, we are an Internet partner for a domain registration, just like we are a partner with Amazon.com also. So, when somebody comes to our site and the value add is they can register a domain by clicking through and there is an ID associated with that where we are compensated for that service, we tend to not want to be a party to the registration of more adult sites. We are looking forward to the value add of CIRA and allowing further Canadian content sites and also look forwards to be a recognized registrar with them. Again, how are they going to protect the adults sites, to protect us from them. When feature adult sites welcome .xxx as a domain, I am talking about future ones, because when they register, they register quite a few different names under one company. They won't have to worry about the huge disclaimers on their sites. Now to protect themselves from states, countries saying it’s illegal. Existing adult.com could be moved over to the adult.xxx and these sites would welcome that. As a whole and the public access of computers easier than existing technology. The contact info issue should be public so that this can always be available for whatever reason. Marketing is one reason and spamming, that you are against it but the whois should always be publicly available for other reasons that are very valid.

Dispute resolution should of course have a process that is much more efficient and effective than it is now. Where lawyers have to get involved quite frequently because there is the process. The cancellation of registration process can be streamlined and e-commerce should be provided. Right now there is billions of dollars done through the Internet and least lines through not just the Internet but through business transactions. And this is a business to business transaction where they are registering domains. So, I am for improving the domain process through new generic level domains. And one reason is that we have a vested interest in there is approximately three million IPs, I have been told, used in the U.S. alone by .edu. And this represents only a partial market for us for unimpeded access. Thank you very much.

(Mr. Rob Hall): You suggested that moving all porno sites to .xxx, I mean that was the reason for creating it. Do you really believe practically speaking that porno sites would voluntarily do this and withdraw their .coms, especially given in the light that we are seeing sites such as NASA.com and Binnybabies.com being registered. I mean, these people seem to want traffic in all cases. Is this something voluntary you are suggesting or would you mandate that they cannot have a .com or what is your suggestion to get them to move to it if you create it and only it? Because it does not seem to work, I don't think they are not all there and reigning there.

(Mr. Shawn Tedder): I think their resistance would be at the beginning until it was proposed to them in the right frame. But they also know that they are getting attacked from all different directions and they know the Government and quite a few other different agencies and so on and so on are watching them and restricting them already. So, if you help make it go away, the cybernannies and the router IP restricting and things like that, that are apparently going on would not have to be effectively established if an organization wants to filter out .xxx and then (interruption)

(Mr. Rob Hall): My question was, specifically, are you suggesting that you refuse to register in any other domain space pornography sites or in fact do you register them in order to force them into only that one?

(Mr. Shawn Tedder): It always would be based upon, you are talking about copyright and you are legally doing issues on copyright, you are talking about copyright issues here today and that you have legal precedence on that. There is also certain legal requirements on the adult sites so that they do not present objectional material. So, when they do register and it looks like it is going to be an adult type site by the name, that is the only way you can filter it until somebody makes a complaint to a certain body.

(Mr. Rob Hall): I am not getting into the core of my question, maybe I will rephrase it. Are you suggesting that certain domains, forget putting aside for instance pornography, that certain domains may refuse registrations of certain types. So, in the pornography case all of the domains would refuse registration of anything pornographic, but we may in fact have a case where a domain refuses any business tender into it. Is that the model that you see here or are you putting restrictions on entire domains?

(Mr. Shawn Tedder): Well, right now ISPs are refusing to host these types of sites, so it is restricting also. Governments and Government agencies and libraries are refusing to take those sites in through the Internet. So, it is happening anyway.

(Mr. Rob Hall): But is it your suggestion that it could do that (interruption)

(Mr. Shawn Tedder): It could very well, oh! yes because it is happening any way throughout the Internet now and they are clamoring for a solution also and this has been talked about for quite a few years on how to make the problem go away with some type of solution.

(Mr. Christopher Gibson): Any other comments?

(Mr. Don Heath): Anecdotally, but it seems to stand on its own. Pardon the pun, the legitimate pornographers actually would like to have a place where they could go. Because it gives them sort of a blessing to do their thing. In fact they have looked for .sex or .xxx, but the people who are trying to do it who are not exactly legitimate or who are doing something that wouldn't be quite illegal would still do it wherever they could get by. So, there is a rationale and they have a top-level domain for that, but I don't think it solves the problem, whatever the problem is.

(Mr. Christopher Gibson): Thank you very much. I think what we will do now is just finish up on chapter two. One area that we had not discussed, we virtually touched upon everything that was in that chapter but one area that we had not discussed in full was representations. That is you will see in paragraph I believe 53, we have made a recommendation. The recommendation is that there be two representations. One, the representation that to the best of the applicant's knowledge and belief the registration of a domain name does not interfere with or infringe the intellectual property rights of another party. This is something that already exists in a number of contracts and secondly, a representation that the information provided by the domain name applicant is true and accurate. What you will see that we did not include which you will also find in certain registration agreements is a representation that the contact details are up-to-date. I think we had a discussion about that point this morning. And also a representation on use. Okay, so what I would like to ask is if anyone has any comments on these two representations first of all. Would anyone find that these are not useful representations to have in a domain name registration agreement?

(Professor Michael Froomkin): I would be particularly interested in hearing about the following hypothetical especially for the lawyers here. If you are representing somebody who has a trademark in a word, and you are in a particular industry and there is somebody else you know of who has the same trademark in a different non-infringing product or in another country in the same product or different product. Would you feel comfortable telling your client to make this representation as it stands in that factual circumstance? And if the answer is no, does that mean nobody gets to register that word?

(Mr. Rob Hall): I would certainly like to see the wording of it changed. I would not be comfortable saying that I am guaranteeing or I believe that I am not infringing on someone else's rights because I may not be aware of them. I think I would be comfortable making a statement saying, I believe I have a right to use this. In other words I believe I am asserting some right to it. But for me to make a statement that in all cases I believe I am not infringing anyone’s, I may not be aware I am infringing on someone's rights so I don't think I would be comfortable making a statement of that. But, perhaps it should be reworded to, I am representing that I believe I have a right to this name, and left at that.

(Mr. Christopher Gibson): Thank you Rob. I think one of the things as you know, well Jonathan Cohen.

(Mr. Jonathan Cohen): Many people who are IP lawyers registering a trademark would have difficulty with that except that when you state that you have the belief to the best of your knowledge, the only question that would arise then was there any duty upon you in advance of making such a statement to have done a search or to have done something in order to be able to make that statement. But in fact every time you do apply I think there is an inherent statement that you believe you have the right to do it and it is always subject to challenge and if you don't have the right then you are challenged. That is all I have to say.

(Professor Michael Froomkin): Don't go away yet, I have got a follow-up for you. Is the root to that conclusion that the registration is not in itself an infringement on the other trademark in my hypothetical? Is that a piece of your analysis?

(Mr. Jonathan Cohen): No, I think it is more than this. First of all, I am not competent as an applicant or the advisor to an applicant to make a determination as to whether or not it is infringing. Only a court can do that in any event. What I would do and typically what any IP lawyer would do when they were asked to file an application, is they would recommend a search, they would make the search that they feel is standard in the industry to make sure. Because they do not want their client to run into trouble, there is no advantage to that. And then they would make an assessment based on experience, the case law and everything else that is relevant. About whether it was reasonable to go ahead with an application and they would recommend to their client that they either do or they don't. Now, if the client wants to go ahead despite your advice which happens and take its chances that is fine. Because their is not definitive way of saying it is or it is not infringing. I think that is the nature of our business.

(Ms. Suzanne Morin, Senior Counsel, Regulatory, Bell Canada): Just a quick question for trademark lawyers, which I am not. It says that the registration of the domain name is not infringing, does use have to be connected to them as well, like the registration and use of the domain name is infringing?

(Professor Michael Froomkin): Since nobody else wants to. This is a very tough question, courts disagree, lawyers disagree. My own personal view is that your registration is not in of itself. A trademark infringement, there have been two court decisions that I know of, one in the U.S. and one in the U.K., which held that registration in a course of conduct where you are in the business of registering other people's trademarks and are to resell them was actionable. I know of no cases that really deal with it in the context of a one-off situation. I mean in getting to courts is sort of the common law is kind of we are drawing a line between organized cyber extortionist and other cases. But we don't have an authority to manage it for you, I don't think anyone in the world thinks that's fair.

(Mr. Christopher Gibson): I agree with his analysis. Right now, the way the courts would look at it is where someone has held it. It is almost a question of intent. They look to see if there has not been a use in a sense of putting up a website whether they can find there is a commercial purpose in trading on the value of the domain name as a mark. And there the intent would be whether or not the party that has registered seems to be indicating that they want to sell it. And so the leading case in the United States I would think right now is the Ninth Circuit Panavision Case. The case out of the U.K. that is widely cited is the One in a Million case. I think that is the line they are trying to draw. To follow-up on something that Jonathan Cohen had said, we are also not recommending that there be a requirement, that some sort of systematic searches be made by the party that is registering the domain name, that comes in paragraph 78. We acknowledge or recognize that it is useful to have voluntary searches of trademark databases, domain name databases, but we would not make this requirement that something that I can say has been put to us by all the various interests groups that have been participating in this process. No one has wanted to impose some sort of requirement which could then be reflected in some sort of certification that they made a certain level of effort to make these kinds of searches. So, why we encourage them and we know that a number of companies are doing this, this is not something we are suggesting should be required or certified to in the contract itself.

The area of representation of use, one we touched on this morning in the sense particularly of the purpose of the use. We talked a bit about the description of the company. We have found that it would not be useful to require a representation in the agreement that the domain name is used. Part of our problem is trying to determine what constitutes "use." In fact we have asked for further comment on this point to determine what would be, what is the definition of use of a domain name. Is it the mere registration itself, is it somehow connected to the website and how it is being used in that sense? Either technical measures that can be incorporated to determine whether there is a technical use. If there is any comment on that point I would like to hear it.

(Mr...........................?): Are there any technical abilities to determine if the domain name is in use at all?

(Mr. Christopher Gibson): Let me just read in paragraph 62, we have said "there is belief that statements in the registration agreement concerning the intention to use a domain name and the intended purpose of such use are of limited value. No recommendation is made for the inclusion of such statements, but interested parties are invited to submit additional comments on this issue as well as on any observation on what would constitute use of a domain name in this context, how such use could be verified and the consequences of failure to use a domain name if there was some sort of agreement that use is required." This is an area where there has been a lot of general sense or agreement that having a representation that using a domain name is a good thing, but when you think about it you have to define what would constitute use and how would that be something that could be verified in a practical way.

(Mr. Rob Hall): I think trying to technically verify use you could certainly, without getting too technical, to verify that domain servers were servicing that domain. If you try to get into what services they are offering for instance what page is their e-mail you could get a domain that is using a private port that you want to wear out. So, I think that is probably a technical impossibility to say this domain is absolutely is not being used, other than saying it has a DNS services for it. I am not sure that even having DNS services for a domain, in the absence of DNS service, I am not sure that would invalidate the use of that domain. They may be temporarily down, they may be offline for a month, the company may be wrapping up for a campaign. So, I am not sure technically whether you could ever definitely put a stamp that this is in use or this is not in use. Certainly, you may be able to say that this is in use, as to what page is your e-mail. But to say it is not in use would give you some grief.

(Mr. Ken Fockler): Just going to comment that it covers many areas and we heard from many companies during the hearings that many of them in order to protect their intellectual property, register a lot of domain names and don't put them into use. They might, I suppose, if depending on the definition that it would all go back to one central one. So, all the various Disney ones will go to a Disney site maybe that would satisfy an end use. So, you really have to be careful about defining something that was intended for one purpose and impacts another.

(Mr. Rob Hall): The problem is, is it not use under what we are still thinking strictly and technically to the Internet. Is it not that the domain not be considered in use if I would advertise it is coming soon in the print media. So, it may not be active when I say opening July 1, 1999. Is that not use of the domain? And there is no technical way for me to verify that. So, let’s think if you are trying to do automatically or technically that you may have problems.

(Mr. Christopher Gibson): Thank you. Jonathan Cohen did you have a comment?

(Mr. Jonathan Cohen): Referring to section 45 in our Trademarks Act and that is, you want to prevent people from having dead wood from simply stockpiling and preventing other people from obtaining a name when they have no real interest in it. The difficulty as I see it is not necessarily coming up with a definition of what use is, I agree you need to come up with one. I don't see that is insurmountable. The problem I see is that you are going to need some kind of methodology for challenging whether it is in use and that means some kind of quasi judicial proceeding. Now, the one we have under section 45 is by and large simple and inexpensive, but none the less it can take a year or that kind of thing. And so that to me is more of a problem. I think you do need to have a method for dealing with people who have domain names that they are not using and you have to define what that is. But then the bigger problem is what do you do about it?

(Mr. Don Heath): I don't have the technical details at my hand to tell you how to do that. But I do know that back in the IAHC days, when we were looking at verifying whether it was in use, that the technical people had ways to do that. And at the time we were thinking of verifying that a domain name was going to be in use at all. But in fact the only time you have to verify it if there is a challenge to it. So, there argument is we can't do it because it is too time consuming and it would take too much power. But, the only comment is that there is a way to do that technically and since you would only be doing it a very few times, when somebody challenged it and perhaps wasn't being used it can be done. I just don't know how it is done.

(Mr......................): The difficulty is that even there is some foolproof method for technically determining that it is not in use, assuming you define what use is, that still might leave a question of whether the use could be excused, or the lack of use could be excused in certain circumstances for certain matter of time. And that is why I say I don't see the definition as a problem or even the technical thing as a problem. But that if you decide that it is sensible and I think it is, to have some methodology for challenging somebody's right to the continued ownership of the domain name, if they are doing nothing more with it than stockpiling it. Even if they don't intend to sell it, if they are preventing it from really being used and they have no intention to use, then you have to have some process or procedure for so doing and it has got to be consistent with what we are talking about. It has to be efficient, quick and cheap and .................. And I understand that a big a deal but that is where you are heading.

(Mr. Rob Hall): I think we are talking about two different things. I think technically we can prove it is in use. I don't think technically there is any way to prove it is not in use. So, it is easy to say it is in use. So, if the whole intent is in use or not is to try and stop the cyberpirates and cybersquatters. I mean ...............what they do is appoint it to a web page that says this domain is for sale and then technically it would be in use. By all our technical standards we would have to say it is active, there is a web page it is in use.

(Mr. Christopher Gibson): I would just add I think I intend to agree with what Jonathan is saying on this point. In a sense in our guiding principles in the chapter three on ADR, one of the principles that we identified is use of the domain name. And I am most comfortable with having that issue treated in the process of some dispute resolution procedure where there is a consideration of the facts and circumstances. There we have said, relevant questions here are whether a holder is actually using the domain name and if so any goods, services or purposes in connection with which the domain name is being used, whether such use is commercial or non-commercial or relates to public service and then so on. And also the intended use of the domain name by the third party complainant. So, I see in a factual context you can try to approach this. We felt there was limited usefulness to having a representation on use in the agreement itself, but would not preclude someone in a dispute from suggesting that there wasn't use and trying to spell out why they believe that.

(Mr. Rob Hall): Are you stating that in that by that statement that you assume that all uses where the intended use is to sell the domain would be prohibited? That is not an acceptable use as to put it up for sale?

(Mr. Christopher Gibson): No.

(Mr. Rob Hall): It is not an acceptable is that (interruption)

(Mr. Christopher Gibson): No, I am not saying that all uses where they intend to sell is somehow prohibited. I will move to the next subject and the next subject is, which is waiting periods, and there was I believe again very widespread support for the idea that there should not be a mandatory waiting period before the activation of a domain name. This is a subject and an issue that has been discussed for about two years even in the International Ad Hoc Committee process. And I think it received the same feeling in that process, that this was not a useful thing. Although it was the starting point particularly from a number of those that came at it from the trademark point of view. What we have suggested as an alternative though is that to obtain a suspension for an initial period of time perhaps 30 to 45 days after the initial activation of a domain name and the question we posed was whether that suspension should be the result of a more of an automatic approach or should only arise after a challenge in a dispute resolution procedure in a court. And we came out with the recommendation that we think that there should be the possibility within a short period, 30 or 45 days after the initial activation of a domain name of someone moving for the suspension of that domain name, but that the suspension should only result from either a court review or a review in an alternate dispute resolution procedure. Any comments on that from participants?

(Mr. Rob Hall): We have debated this within CIRA as well. The problem there is you are putting a barrier on someone getting a domain name. So, although you know if Ken applies to us for a domain name, we say yes Ken it is yours, but we have this waiting period where it is kind of 'iffy' and what you are doing is essentially telling him don't really use this domain name until after that waiting period. So, if you were to apply that to all registries equally that is one thing. But if you say .com gives it to you right away under these rules, there is no waiting period and other domains, other registries are forced to make you wait before it is absolutely yours. Corporations would tend to go with the one that is absolute. Often you are either trying to put business cards or trying to put up stationary they are saying what is my name, tell me it. If I have to go back to them and say it is kind of yours, but we are not sure someone could still raise a flag much like the trademark process and I think that would be a barrier to them registering in that registry.

(Mr. Christopher Gibson): Thank you Rob. I think the approach that we have tried to propose here actually imposes some duty on someone that would wish to register a domain name. To do some of these searches which we suggested might be voluntary, but that they would therefore be able to go for it and if they view that they have done a sufficient degree of due diligence they could start using that domain name immediately. And what we are also suggesting is that there should be no automatic take down approach although we have suggested a possibility in paragraph 73 of the Report that there should only be the possibility of suspension as a result of either a court or an ADR procedure. So, in that sense there would always be the challenge and then the review of the facts and circumstances. So, if a company has done some preliminary searchers and feels that they can immediately activate a domain name and the website and start moving on it, then they should also be prepared to resist a challenge.

(Mr. Rob Hall): But why should the first 45 days be any different than the next ten years? What is so special about the first 45 days? You are making a special situation for the first 45 days that sure you may have to go to court or whatever your suggestion is, but you can do that at any time. I mean why have a different set of rules for the first 45 days than applies to the domain all the time? I mean a company that has infringed a mark and still take relief, you know we still have ADR mechanisms that may come into place, we still have courts that may come into place and suspensions. To put another burden on the first 45 days I would disagree with it.

(Mr. Christopher Gibson): As for the particular period, 30 or 45 days we have put that out there. Is there anyone else who feels that this is a particular problem? That is to allow for this kind of suspension during an initial period? As Rob points out, you can always go to court at any time and the only difference that we are identifying here is that you might be able to achieve a suspension through a more expedited procedure whereas at any point during the active registration of a domain name if you want to challenge it, you can go to a court or go to perhaps these ADR procedures, and in that situation you may try to seek interim measures in any event which would be available in a court for example. But otherwise you normally would have to wait until the outcome of the dispute.

(Mr........................): I have a quick question. If in this scenario, or any scenario would you force the person winning the dispute to take the domain name? Or can I simply just sit in the bush and say I own that, I think I have rights to that if anyone registers I am going to hammer them in this 45 day period when and then just let it be dormant again until the next 'poor sucker' comes along and I hammer him again and again and again. Is there anything to say you win it is yours, you pay for it you have to protect it then or you have to start using it? Has there been any thought given to that?

(Mr. Christopher Gibson): Well, I think it would be an expensive approach for anyone who would like to use that strategy to constantly find that they have to hire an attorney to challenge the re-registration. I think this raises another question which is almost in the mechanics of this system which is, if someone wins in a case or in a dispute there can't be an automatic transfer of the domain name to them because we are not yet clear who it would be that they would want to do business with, which registration authority. So, we would have to have a system in which the name is placed in a status of reservation for a certain period of time in which a party who has succeeded could then go forward and register it in their own name if that was the outcome of the dispute. So, it would be the cancellation of the initial registration by the domain name holder and then the other party would have to come forward and decide how it is going to register that name and with who through what contract. They have to have a contractual relationship somewhere.

(Mr........................): But could you not transfer the, I will use the term ownership which maybe erroneous, but ownership of the domain to the new party and then work out the details of what registrar they want to go through and do they want to sign the agreement? Essentially, you are transferring ownership because whether the courts not say your wrong, your right it is yours. So, I am not sure that would be, maybe that is a possibility but I think maybe they should only say the new owner is this, now work out the details with the registry or registrar and pick whoever you want.

(Professor Michael Froomkin ?): Just a technical point. First of all court in a contract dispute would not necessarily have the authority to transfer ownership with the chattel inevitably or whatever the property interests at stake was. Especially, to a third party who was the party to the contract. Although the registrar or the registry might have policies to let them do that. I also want to throw out for comment a sort of potentially farfetched hypothetical issue that has worried me the first five times I have read this. Just suppose that you have, it is hard to imagine but a repressive authoritarian Government somewhere that wants to prevent a dissident group from getting its message out. And they come up with a very convenient trademark registration for the nationals of their country and say, now please take down the dissidents. It seems to be that this rapid response method, especially in the early days of the dissident group putting up its site, that does lead itself to that potential for abuse and abuse voice of concern. I was wondering if anybody else shared with that or thought that I was just jumping the chattel.

(Mr. Don Heath): I share that.

(Professor Michael Froomkin ?): Let the record show that there is a hand in the audience.

(Mr. Rob Hall): It opens up another possible problem technically on practical matters. Does that mean that we now have to publish registrations somehow, so that you will have the right as a potential trademark being infringed upon to know these people have registered and they are in their 45 days and that type of thing? So, do registries now have to say here is a list of all the domains I have registered yesterday, here who owns them and to the trademark bodies like the registering a trademark in Canada now.

(Mr. Jonathan Cohen): I think what is happening is we are circling the same issues that have been confronting trademark searching and registration for a gazillion years and they have all been answered. And we are looking to answer it in the same way, except because of the nature of the Internet, we wanted to do it faster and cheaper and better. And I am not sure if there is a quick fix for this, but I mean clearly when you start talking about taking somebody's rights away in 30 to 45 days, I don't care how you cut it, you are dealing with something that is fraught with the potential for abuse. And with respect to my friend Michael, I don't think that any of the bunch of dissidents in Iraq. I mean it can be right here between two commercial entities if there is a way as a lawyer that I can see to interfere with my competitor's business and I am within the law and part of it is to lay an objection, trust me it is going to happen. And therefore, it is really an automatic interlocutory injunction or temporary restraining order as they call it in the States. And we have rules for those. And if you are going to do that kind of thing then you need some rules and I don't have to tell you what they are. Everybody in the room as a lawyer knows what they are and that is all I would say. When you talk about Chris saying you go to court, what court? What court are we going to go to? I mean we are all going to go to the court in the Ninth Circuit or are we all going to go to the court of Chancery in England or where are we going? It depends who is involved and who is going to listen. And therefore, I think that if it was possible, if you want (Mike Rathers ?) when the IAHC thing was being discussed in Geneva, my answer was that you are actually right Rob, that as applications are made they should be published and available for inspection. Just like you can search trademark applications as they are filed. Registrations can be filed and it is up to the public to keep track of them and if somebody files something that you don't think is right then you should be able to make application to prevent it. And what we are talking about at the IAHC, we were talking about is getting an emergency body of arbitrators who will be available in twenty-four hours notice, just like you could get a judge. If you want a TRO and you are in a hurry you can find somebody. You better damn well have a good case or you are going to be in serious trouble, but that is the kind of process in Geneva on line to deal with IAHC. Just saying 30 to 45 days I would be terrified personally.

(Mr. Christopher Gibson): Thank you Jonathan. Just to clarify what you just described is exactly what we are proposing. There is no automatic suspension. There would be a suspension that could only come out of an expedited or emergency process of review. But, it would be following these kinds of standards that you described. I think just a comment in passing on the last topic in chapter two. That is technical measures for the co-existence of similar names. We have made a recommendation. We do not recommend that portals, gateway pages, directory or listing services or other measures be compulsory in the event of competing claims to a common element of a domain name. Would anyone disagree with that recommendation? Okay, then I think that will let us go to chapter three.

In chapter three we have dealt with the topic of dispute resolution, as I mentioned briefly this morning. We have noted that there are a number of multi-jurisdictional problems that are opposed by domain name and intellectual property conflicts. Some of the disputes over an intellectual property can manifest itself in a number of different top-level domains. We have had those who have come forward and say that the same type of registration may occur in a generic top-level domain as well as in a country domain. We feel that urgent resolution of these types of conflicts are needed. We also see a disjunction between the relative ease and cost for registering a domain name and the damage that may follow and also the cost of pursuing litigation that would bring about a remedy. We have seen that registration authorities have been involved in these disputes. And so what we are addressing in this chapter, in paragraph 112 is a number of different measures. Achievable amelioration to the use of court litigation as a means of resolving disputes. We have discussed some guiding principles in the design of alternate dispute resolution policy. We have briefly touched on the role of mediation, the role of arbitration and then finally we have treated at some length the proposed recommended administrative dispute resolution procedure. The first recommendation which comes in paragraph 115 is to recommend that any dispute resolution system or alternative that may be adopted for domain name disputes, should not deny the parties the right to access court litigation. And we have talked a bit about this earlier today. There were those that have felt particularly in the context of considering arbitration as an alternative. Arbitration is a situation in which you preclude resort to courts because in a contract you have agreed to go to arbitration. There are those that have found that, that is something they would not be comfortable with particularly if this ADR approach was mandatory in the contract. Is there anyone who would disagree with the recommendation in paragraph 15. It is recommended that any dispute resolution system alternative to litigation that may be adopted for domain name disputes should not deny the parties to the dispute access to court litigation.

We have addressed also the question of jurisdiction. That is when a domain name applicant registers a domain name, should they agree in the contract to submit to jurisdiction in any particular places? That would mean that they would forego the possibility of contesting jurisdiction. This was a subject that was treated in the U.S. Government's White Paper. They identified four possible places where there might be an agreement to jurisdiction. The location of the root server, the location of the registry, the location of the database and finally the location of the registrar I believe.

(Mr. ................. ): Chris, can I suggest that root servers here and there are 13 of them in the world. There is one in 13 different jurisdictions. I don't think that one counts as, you know you can pick your jurisdiction on most of them. There is nothing to say that there could not be a 100 root servers. I mean there happens to be 13 now. I think maybe the term you want to use there is that the top-level domain server. So, where the .com server is not necessarily the root server which in fact would probably be the database registry where that is okay.

(Mr. Christopher Gibson): Well, we have moved away from those terminologies, particularly because we did not see how they would be put into place in practice and at the same time we wanted to take a view of this from an international perspective. We think that there is a value to try to increase the certainty that is by having someone to agree in a contract that they might be submit to jurisdiction in particular places, but there is a very long well-established complicated system of jurisdiction that exists in most countries where there has to be a sufficient nexus with the form before you can require that a defendant come to a place and defend itself. Keeping that in mind, we have recommended first, that we would not suggest anything that might prejudice or interfere with existing principles of jurisdiction. That is, if someone wants to bring a case against someone anywhere and they feel they can do it under the independent jurisdictional law that applies they should be able to do so. And we would not recommend anything that would interfere with that.

Secondly, we have suggested as a proposal in paragraph 119, that it be recommended that a domain name applicant be required in the domain name registration agreement to submit without prejudice to other potentially applicable jurisdictions to the jurisdiction of one, the country of domicile of the domain name applicant. That would just be to state the obvious. They are not going to contest jurisdiction at the point where they are located. And two, the country where the registration authority is located. And that point deserves a bit of explanation because there is a point of ambiguity there. There is the registry and the registrar. There is also an ongoing clarification of the relative responsibilities of these different entities as ICANN forms itself and as the new system comes into play. I think we would be most comfortable thinking that someone who is dealing with a registrar with the business entity that is the consterner interface, the person who enters into an agreement with that business entity should feel possibly they should be comfortable agreeing to jurisdiction at the point or location of that registrar of the business they are dealing with. And the reason we think that is reasonable is because that is often found in many contracts. The person you might choose to deal with, the registrar or the company might be a local business that is familiar with the local business culture and language. So, that is essentially we think is a fair approach that would increase to some degree the certainty over where it is today. Any comments on these proposals? (interruption) No, I am suggesting the registrar is probably the place that we would if we had to divide between the registrar and registry, would be the place of the registrar, the location of the registrar that we would be comfortable with. Any comments on this proposal?

(Mr. Rob Hall): I would adamantly disagree with I think both those things. I am not sure the country where the person resides is necessarily indicative of anything. I think I would like to see registries and each top-level domain at a jurisdiction and see all domains under this top-level domain will fall under this jurisdiction. If you want a domain you will agree to that. For instance, the .CA may pick Canada. The .com may pick the U.S. The other problem I have I think with picking where the registrar is. Let us take the example of a registry in the U.S., and a U.S. company saying they are being infringed upon and the registrar is in a foreign country, let's say England. I tend to give more weight practically to the company in the U.S. being able if they get a temporary restraining order and show up at the door of the registry with the police saying, enforce this and then it will be enforced, more than a decision from a foreign court or proceedings in a foreign land. So, I think there has to be some way practically given to where physically the registry is because they will probably be bound by the laws of that country. And I think it would be very hard for NSI to say we don't care about the laws of the U.S., we are going to follow the laws of England in respect to this specific registry. I think American companies would be able to overturn that as a practical matter just because of the physical location. So, I think registries should pick and apply a standard jurisdiction to that domain. If you want a domain in this, you know what rules you are playing by it. If it is the courts of Zimbabwe or wherever they pick, maybe it is the courts of the Hague international courts, but for this domain, this is what you are playing with.

(Mr. Christopher Gibson): Thank you Rob. Let me make two comments to that point. First, I think you have to make a distinction between country domains and generic top-level domains and the reason I say that is because I know it is quite common right now when the number of the country domains that they have a domicile requirement others don't. But in the generic top-level domains the problem is one of a concern of fairness. That is if you are going to suggest that a domain name applicant agree to submit to jurisdiction at the place of location of the registry that could take them across the world. That means they are submitting to suits across the world if that happens to be where the registry is physically located. That might make it easier for the claimants, the plaintiffs in these situations to go to that point. But the point we are trying to respect here and it is a difficult point, is the idea of fairness. The idea that a defendant should not necessarily have to and this is why jurisdictional law has developed the way it has, the point of fairness and due process not requiring someone to come into a place to defend themselves unless they had a sufficient contact with that place. So, the idea of requiring by contract that they agree to, the place of registry which is up the contractual chain from the registrar where they dealt with I think is a difficult point.

(Mr. Rob Hall): Respectfully no. Because the defendant in every case would be the person who has already agreed to the contract and knows what he is getting into. So, if I want a .TM for Turkmenistan I agree to the laws. Now, also respectfully I don't believe there is a difference between country code and generics. I think a lot of the problems with the generics that we are seeing and with this cross jurisdictional issues will be solved by saying, this generic whether it be .xxx or .www, this new generic follows the laws of this country. You want one, you agree that all litigation and all laws within that country specifically will be upheld. I think it gets rid of this problem of maybe I will fight this in England because a more preferable state, they understand domain names and I can win there easier than I can win in a different country. If the registry sets out, if you want one, remember we are not forcing anyone to take a domain name. We are not holding a gun to their head saying you have to take a .com. If there is choice, if you do create new top-level domains I would like to see the registry say this is the jurisdiction where all disputes would be fought. It does not necessarily need to be where the registry is based, but as a practical matter it probably will be for enforcement issues.

(Ms. Margo Langford): Actually a point of clarification with your recommendation. First, I take note that your saying that this is without prejudice to all of the other laws and which jurisdiction will apply whether that be taxation, consumer laws or otherwise. So, I think we have to be careful that we are not tying too much to this particular provision. The question of clarification that I am seeking from you is, are you suggesting both A an B at the same time that while you are asking people to do is admit basically to the law and jurisdiction in their own domicile as well as wherever the registrar is? Is that what the proposal is on the table?

(Mr. Christopher Gibson): Yes.

(Ms. Margo Langford): So, in other words, when you are signing a contract you are saying both yours and my laws are going to apply here in the alternative dispute?

(Mr. Christopher Gibson): That would be both parties to the immediate contract. The registrar and the applicant and that would be without prejudice to any other places when there is a dispute and the third party wants to bring a claim, they could find possible jurisdiction with respect to the domain name registrant.

(Ms. Margo Langford): My comment then, with all respect to Rob, and he is raising all the same issues that we have thought about with consumers’ groups and in the taxation issues and everything else, it is the same challenge and the economics of the little guy over in the other party who may have a better ability to bring the dispute in all those issues. I think you have struck a balance here. That is personal opinion but I think you have struck a nice balance by giving both jurisdictions at least at the get go in the contract. Especially, if you are going into ADR and it is going to be online. Then, what you are really saying is laws of both your country and mine are applying here as with respect to trademark or am I still getting it wrong?

(Mr. Rob Hall): So, if I may hypothesize. A country comes up and says corporations within this country will fall under our laws. And remember that the applicant, we say domicile of the domain but that could be in fact where the corporation is based. So, what would happen if a small country came and said we are going to be very friendly with domain holders, so you want to register your domain from a corporation within this country and our laws would then apply to it and of course we are going to protect you at all costs, are you not creating a situation where (interruption)

(Ms. Margo Langford): I think Rob you are trying to roll too much law into this one provision. I think this is only talking about trademark disputes and resolution to those disputes. So, it is proposing in a contract, to contract out of all those other legal situations.

(Mr. Rob Hall): And I am suggesting rather than throwing it open and saying there is all these hundred variables of where you could decide and is where you decide to incorporate is where you decide you live, as it were where the defendant lives. As opposed to all that, for each domain pick one and say this is it for this domain. It takes away all this ambiguity, all this fighting about jurisdiction. I mean you get out of years of fighting about whose jurisdiction over a given domain. Whereas if the registry came out and said for this domain, this is it, this is what we listen to. If both parties agree obviously it maybe, or it maybe not, but it takes away this jurisdictional problem if you just say this is it. It is the U.S. for .com, it is Canada for .CA, .www is England, if that happens to be the case, and go from there.

(Mr. Christopher Gibson): I think Phil had a comment if you wanted to and then we will move to Phil and I see Michael Roberts, I know Michael Froomkin has comments, so let’s (interruption).

(Ms. Margo Langford): My only retort to that is I think personally it is very attractive. It is like admiralty law and there is a whole body of law and we can start to think about it if you want it. To raise a flag and say this country applies to this particular thing. But it raises as many issues as it solves and so I am not sure that it is a panacea either, that will be my only comment.

(Mr. Philip Sbarbaro): Nothing puts an audience to sleep quicker. An audience of lawyers, laymen or law students quicker than the discussion of jurisdiction. Riding something that disagrees with international rules of jurisdiction or domestic rules of jurisdiction is like walking around with hand grenades. If one were to say that you can have jurisdiction where the registrar is, again watch what you are doing. You are saying Rob and I have a contract, but now a third party can sue based on our contract. That is not the way jurisdiction is played out. And every federal court in the United States has said if the dispute is based in contract, fine. If the dispute is based in tort, you cannot use that contract as a basis for bringing your tort claim. So, if it is grounded in trademark law don't think you can come to Alexandria Federal Court because they have thrown out every single case that has been brought there. If you make it the seat of the registrar, that court system will do everything conceivable to kill it. Because if you think rocket docket of Alexandria or Virginia or the rocket docket in Toronto will allow every single domain name case and eventually Rob will have 2 or 3 million domain names in one court house. Think again, it is not going to happen. So, let me suggest an alternative. And the alternative that we came up with so far, except for a couple of Rob's very strange examples last night, so far it has worked perfectly and that is this. I don't care where the law suit is brought. Of course you can sue someone where they live. Now, domicile is too big. Yes, I live in America. That does not mean you can sue me in California. So, country is too broad it has to be a particular jurisdiction. And jurisdiction, by that I mean the legal jurisdiction. If you are in Los Angeles you cannot file the suite up in San Francisco, it is not the same judicial jurisdiction. But wherever a law suite is brought over a .com name, I don't care if it is in Finland or Iraq or France, we ship a registry's certificate to that court house. As soon as a complainant has raised the anti sufficiently and brought a law suite and we see a filed stamped copy of a complaint, off goes this registry certificate. And it says to the court and it said to the High Court of Chancery in London, to the court here in Montreal, to the court in Hong Kong in twenty different jurisdictions in the United States, "judged by this certificate you have complete dominion and control over this name God speed do whatever that you want with it, we are not a party if you include the registrar you tell the defendant what to do with the name". If he does not abide by that court order you have our assurance within ten days we will. No other law suite has to be brought, no enforcement proceedings, no contempt proceedings. You should not have to make the trademark owner do it once and then do it a second time trying to figure out how to enforce this newly found judgement. Now, that has worked perfectly all over the world so far. Not one court, except one judge in New Hampshire and may he live free or die anyway, only one judge has decided to decline to accept that certificate. So, when you talk about jurisdiction, sue whoever you can sue. Sue just like in the normal laws under international jurisdiction laws. If I can catch Rob in the airport in Washington D.C. and tag him with that complaint he is sued there in Washington. Use all the normal minimum contacts fairness, due process. But this is the first time Rob, as the young capitalist has said no we must have a certain rule only in Canada that is why I am surprised. But it points up a distinction. If a ccTLD, and this is for Michael, if a ccTLD wants to have its own rules, God bless them, then that is their rules. If a country says we are international, sue us wherever you want, then so be it. It does not have to be in (Lockstar ?), everybody does not have to be the same. The decision from ICANN could be I am not going to go in your jurisdiction with a ten foot pole and whatever works. And if it does not work then we will fix it. But so far it is working perfectly for 3.5 million.

(Mr. Christopher Gibson): Let me just make a quick comment and I am going to ask you a question Phil. As you can see from the discussion here, you have a number of different possible points. One is a fairly aggressive view, another one is a fairly humble view where we say we are not trying to prejudice what is happening in an existing law and we are trying to pick one or two points. A third view is you say nothing at all. And you put nothing at all in your registration contract about where the domain name holder would agree not to contest jurisdiction. And then what you do is perhaps an approach like Phil suggest which is essentially registration authority would agree to accept the judgement of a court of competent jurisdiction. My question on that is whether that ever scares you? Given the certain courts of competent jurisdiction that might exist around the world, but essentially you are saying you are making enforcement easier because if international enforcement of a judgement often takes two or three steps. There is the step of first of all getting the judgement in the courts somewhere in the world if that is where you need to enforce it that is fine. If not, there is no international convention that allows for the recognition of judgements. You then base this on a basis of comedy. Go to a court somewhere else where you institute an action and then get the other judgement recognized and then finally execute upon the new judgement in the court where you want the action to take place. What he is suggesting is a registration authority will make that easier by accepting the judgement no matter what jurisdiction it comes from of a court of competent jurisdiction. So does that scare you Phil?

(Mr. Philip Sbarbaro): Only seven days a week.

(Mr. Mike Roberts): Yes, I just wanted to make a couple of comments. First of all the White Paper and our by-laws and so on oblige us to promote fair competition throughout the worldwide registry and registration system. And I think that the way you have articulated this in the document needs to be expanded a little bit. If you think about this, there are three sets of contracts that are going to be in this food chain, three major sets. One, is between ICANN and the registries, that is some two hundred and fifty, sixty odd contracts. Then there is going to be the contracts between the registries and the registrars and right now that is a pretty small number, but it could be in the thousands pretty easily. If you look at the Canadian projection we were given last night of hundreds for .CA. And then there is the contracts or the effective contracts between registrars and registrants. It seems to me that it is in the aim of promoting fair competition and healthy growth of the Internet to have the least perturbation of the normal course of business arrangements that prevail relative to all three sets of those contracts. Now we have to look for ways to do this that do not for instance create new legal jurisdictional requirements of some kind or another. I mean just this very quick conversation here about mailing registry certificates around the world and finding judges and catching people on airplanes and so on, those are big dollar signs. And I really think that to the extent for instance that multi-nationals largely have both their marks registered and their domains in hand that the big dollar disputes over this thing are pretty much behind us. So, we ought to kind of focus in on what is the most likely thing that promotes fair competition that all levels of this thing and enhance this growth.

(Mr. Don Heath): Mike just one thought or any of us. I can speak for myself or maybe I could say we, whenever you speak of a registrant don't say domain name owner, say domain name holder.

(Professor Michael Froomkin): I did not know about that. But that is an interesting question I could ask my students to write about. The status of domain name registry or registrar that took away one arbitrarily, and try to re-sign somebody else, or try to auction is a popular one because it is sold and decided if you really want somebody else to have it. This is very interesting legal cases for down the road that is not part of this process. I would not want to prejudice those cases. I would like to go back to this issue of competition and to Rob Hall's comments. Because it struck me sitting here listening to this that there is a real issue of path dependence. Rob Hall proposes a model where the choice of law and jurisdiction would be firmly focused on where the database was, and hopes thereby to promote competition between legal systems through the proxies of different top-level domains. And in a world in which there was a very large number of relatively comfortable gTLDs to choose among, this would probably be the regime which should be most well calculated to create true competition and, incidentally, would give .CA a real leg up probably over .com which would be burdened with high-fee American lawyers and American courts, which for some reason inexplicably to me are unpopular in other jurisdictions. So, it is quite interesting therefore to note that the proposal probably, this is my opinion, does not work as well in a world of rationed slowly developing gTLDs without competition cannot develop. And it introduces for me a new perspective I never really thought about before. About the tradeoff between the go slow I think just about everybody has always assumed what they have on gTLD creation. Or even they go very slow versus the need for competition. Because if one knew in advance that one was going to go faster then the Rob Hall model of jurisdiction location which had never before seemed the least bit attractive to me I must confess, would take on a new sort of attraction validity.

(Mr. Christopher Gibson): I will only comment that we then have the tail wagging the dog. I think if people were choosing registries based on these kinds of considerations as opposed to the other considerations by which they might choose to do business with a particular registrar and hence the registry upstream. What I would like to do then (interruption).

(Mr. .......................): But isn't that exactly the decision every business makes? When I go and sign a contract with a company in Australia, do I not have to consider Australian law and how it may affect it? I am doing business internationally now, it is very different than doing business just in my little local town.

(Mr. Christopher Gibson): Well, if you are doing business internationally and there are two parties to a contract they would normally both choose the law that would apply as well as the jurisdiction and that would be subject of the negotiations. But that is not the main reason that they are deciding to do business (interruption).

(Mr. ...........................): So, why can't the registry and the registrant choose that jurisdiction upfront as well?

(Mr.........................): That is exactly what I am suggesting. Why can't the registry and registrant in their contract agree to a jurisdiction to fight in should there be a dispute?

(Mr. Christopher Gibson): The registry certainly can. What I am suggesting is that as registrants determine what registries, what top-level domains they want to register in, they are using the jurisdictional choice as the basis could be one factor. But I am suggesting that may not be the factor at the forefront that should be weighed. It is essentially looking at what is happening in the future that if some dispute might occur and that is influencing my choice whether to be in .CA versus .com or .something else. Of course it can influence your choice, but I am thinking that hopefully isn't going to be one of the predominant factors something to be considered. But you are also talking about people who register in domain names they are not sophisticated business parties and there is not a sense of, if you want to talk about consumer contracting there is not a sense of true negotiation. It is either take it or leave it as opposed to let's sit down and we are not going to choose your law or my law we are going to choose the law of New York because it is a neutral venue.

(Mr.....................): But that is exactly what I think makes domains that are tagged as specific jurisdiction appealing is, I come back to .CA again and I know it is a country code domain but I think it applies equally to generic top-levels. We have a generic top-level domain that was based in Canada. I think canadian companies and canadian entities would much rather register in a jurisdiction they knew and understood and did not have to research the laws outside as opposed to potentially having to worry about a hundred different jurisdictions who knows where the suite could come from. So, it is exactly that, that warm and fuzzy feeling that I think companies would want. I understand the laws in that specific instance. I don't need to worry about the world I know that one, I am comfortable there, I understand them, I am happy to register and do business in that jurisdiction.

(Mr. Christopher Gibson): Well, I agree with that point about how companies in Canada might decide they want to use .CA. Any other comments on the point of jurisdiction in general and courts? Because then I think we will move into some of the proposals we have discussed for ADR. Any other comments before we close this part off?

Changing the subject into alternate dispute resolution procedures what we have done in this Report is consider as I said earlier this morning mediation, arbitration and administrative dispute resolution procedure, our proposal for such a system to be implemented. If you look at paragraph 122 we have listed out what we thought are some of the principles that should be considered as you think about these three alternatives. Any ADR procedure should permit the parties to resolve the dispute expeditiously and at low costs. ADR procedures should allow all relevant rights and interests of the parties to be considered. ADR procedures should be uniform or consistent across all open TLDs. The availability of ADR procedures should not preclude resort to court litigation by a party. The ADR procedure should not have the affect of binding legal precedent in national courts. The remedies available in an ADR procedure should be restricted to the status of the domain name registration itself and thus should not include monetary damages. The determination resulting from an ADR procedure should upon notification be directly enforced by the relevant registration authority by making if necessary appropriate changes to the domain name database. Registration authorities should not be involved in the administration of ADR procedures. A decision by a court of competent jurisdiction that is at variance with a determination resulting from an ADR procedure should prevail over the ADR determination. So, you see a set of principles here that have informed our views as we have made the proposals on the pages that follow. I can open up for comment some of these principles here. I will do that for a moment and then we will move to mediation. Any comment on these?

(Mr. Elliot Noss) : It strikes me that there is a slight conflict between ADR procedures not precluding resort to court litigation by a party and having ADR procedures be pre-eminent in terms of resolving the specific domain name issues. One of the points that I made reference to this morning, was that I felt that it was absolutely vital to this Process to make it of full value. That narrowly with regards to the disposition of the domain name itself, the ADR procedure should be pre-eminent and should and again by virtue of the parties contracting such should be the courts if you will or the abider of the domain name itself. As to monetary damages and the rest that certainly could rightly flow from a process that could wind its way through the courts. But, point four here strikes me as creating the likely recourse to the convenient form. Or the form that from a pragmatic perspective provides the best outcome for each of the parties in making their analysis. And again, it is just with that narrow point of resolving the domain name issues themselves, not the rest of the remedies that might be available. That point four really kind of weakens the whole structure. And point nine I understand as being necessary perhaps to some extent to assuage national interests concerned with the turning to some international jurisdiction. But, again has the effect of weakening the potential for this whole process. And I am wondering have these sections come out of a bit of a watering down based on the interim process of the various comments received. And do you see them as absolute political non-starters in terms of removing or in terms of seeing this Process as the one that fully dealt with the narrow issue of the domain name itself, the DNS?

(Mr. Christopher Gibson): Yes, I think you have focused on two points in paragraph 122, paragraph 4 and paragraph 9 which distinguish the proposal for an administrative dispute resolution system from the arbitration alternative. And the reason that these two points are included is very much I think frankly from the point of view that you are creating a new form. A new form for dispute resolution and it is a form that some people aren't completely comfortable with. They wanted to evolve in a slow way. They don't want to be tied in a way that does not give them certain flexibility. And so, from that point of view we have included these provisions to reflect some of that concern. You can say certainly that there drawbacks to a system that allows you to first go to an ADR proceeding and then have a second bite of the apple by going to a court following that. That certainly is not the situation in arbitration where the grounds of review are very limited in a court after you have received a final ward. So, I think you are focusing certainly on two of the factors that have distinguished an arbitration approach from an administrative approach. The third factor that I mentioned also distinguishes the arbitration approach from the administrative approach is that, in arbitration the norm is that the nature of the dispute and the subject matter is kept confidential unless the parties decide otherwise. Whereas here, we have heard that it would be useful to have these decisions coming out of an administrative procedure publicly posted. So, I think those are the three points and yes, they are a result of the interim process and the views that we have heard in our consultation process from various interested parties in the trademark community, the Internet community, the business community.

(Mr. Mark Partridge): Let me add to that. At the various consultations and the comments that I have read there, there seemed to be a uniform position that the courts should remain an option. That we should not take that away from either of the domain name holders who have a legitimate interest in their domain name but may not be a trademark owner. And on the flip side from the trademark owners who may feel for whatever reasons in a particular case that the matter should be addressed by a court. What people were seeking was a cheaper, effective, alternative for those disputes that probably are not going to be complex. That can be resolved in an administrative proceeding, in a cheaper, faster way. But we did not hear support for the idea of removing the option of going to court.

(Mr........................): Would WIPO support hypothetically a situation where a registrar or a registry, perhaps CIRA was willing to adopt the mechanisms as laid out and perhaps again by contract fully atoning to this process and to this body and removing recourse to the courts. Would that be seen as something that WIPO would like to see a progression towards and would support?

(Mr. Christopher Gibson): I will make a distinction which is that in the proposals that we make here, I don't think that would be reflected. At the same time WIPO has an Arbitration and Mediation Center which administers disputes, intellectual property disputes and it currently does support certain country domains. And in that context at least in one I know it is an obligation, it is a mandatory obligation and the model is arbitration not an administrative approach.

(Mr........................): Which country is that if I may ask?

(Mr. Christopher Gibson): That is the .IO country domain. We are also having discussions with about two or three others, .MX, .BR which is Mexico, Brazil. So, there are a number of these where we have a party who is interested. But this comes up quite often. We have in the Arbitration and Mediation Center, we have systems for intellectual property in the area of designs and in other areas. And it is always a question of how parties feel comfortable participating. But, I think there is the valid point which is at the point a dispute if there is not some obligation, parties will not voluntarily engage in a dispute resolution process, because the party that is being claimed against, their incentives are not to corporate. They want to make it as difficult as possible for the claimant or the plaintiff to find them and to pursue a lawsuit or an ADR procedure. So, you have to think in advance. A completely optional system usually means there is not many cases in that system. With that in mind I will move to mediation, because I am going to treat very quickly. Did you have one comment on this?

(Ms. Suzanne Morin): Yes quickly Chris, Suzanne Morin, I had the pleasure of having lunch with Mike Roberts and he raised the point maybe possibly consider rather than making mandatory ADR, you make it voluntary. But once you agree to undertake ADR you have to follow through to a certain step and you can't you know through a certain process rather than you know after immediately say yes I will do the ADR because you have to and then right away have recourse to the courts. So, I am just wondering if that is also something that folks thought about? Make it voluntary and then once you actually agree to undertake ADR though, then you have to go a certain way through the process.

(Mr. Christopher Gibson): Well, let me put the question to everyone that is here. Who would feel much more comfortable with an optional system? That is whatever ADR approach and administrative approach or an arbitration approach you would not want to face a contract where it was a mandatory obligation of the contract. But you might have a tick box where you would say at my option I would agree. Who would favor that approach? As an alternative now, who would favor an approach where there should be a mandatory that is in the contract, a mandatory obligation if you want a domain name you have to agree that there is an ADR procedure that you would have to be engaged in. That would be let’s say an administrative procedure as we have spelled out in the proposal. And I see a lot of no hands either. Okay, this is the kind of feedback if you are going to put in comments now or later that we are interested in receiving, because these are the choices that have to be made on these types of issues. The approximate count I would think is two to one in favor of the voluntary, with a lot of no hands also.

(Mr. Rob Hall): Chris, does that mean I don't want to preclude the fact that whe

n I register a domain I don't check off that I am interested in voluntary ADR, that I would not be allowed to go through the ADR process if I so chose. I think most people may then say, no I am not really interested in binding myself to it, what advantage would I get by checking that check box off, why would I ever bind myself to it if I always had the option of it as well.

(Mr. Christopher Gibson): Let me explain that. Certainly, any time you are negotiating with a party that you have a dispute one of those parties might say well, why don't we try mediation? Why don't we try arbitration under the Vancouver Chamber of Commerce rules or under the American Arbitration Association? That is often an approach that one of the parties would prefer. And then they often rely on the good offices of the administering institution to try and suggest to the other party that, yes let's use ADR instead of a court solution. Often if you can get to the point where they agree on ADR, you can also get to the point where they agree on a settlement. So, you do see quite a bit of combat happening at that point of dispute where a non-cooperative parties. So, these are the sort of things that have to be thought about as you go into this area.

Referring to mediation. We have made a recommendation in paragraph 128 and I have mentioned a few words about it this morning. The recommendation is that while parties with good faith disputes are encouraged to consider the advantages of mediation as a means of resolving the dispute, it is not recommended that a submission to mediation, whether optional or voluntary or mandatory be incorporated in a domain name registration agreement. Would anyone have any comment on that or any disagreement with that recommendation? I see no comments or questions. Going on to paragraph 134, this is concerning arbitration which we have talked somewhat about. We have the recommendation. It is recommended that the domain name registration agreement contain a provision for a domain name applicant to submit on an optional basis to arbitration in respect of any dispute in relation to a domain name. This is on an optional basis and this is to be distinguished with the administrative dispute resolution proposal we put forward. Would anyone disagree with that recommendation or have a comment on it? We have in paragraph 138 a recommendation regarding online dispute resolution. It is recommended that the clauses in the domain name registration agreement which provide for an applicant to submit at its option to arbitration, envisage that the arbitration procedure to take place online. Does anyone have a comment on this approach or a disagreement with it? I don't see any comment or disagreement. Just to describe for example there are a number of initiatives right now to provide what they are calling online dispute resolution. At WIPO we have developed a system too. I would characterize it as a document system. It supports the exchange, the secure exchange and archiving of documents. It does not necessarily replace the need for parties to come together and meet if they desired to do so. But all of the pleadings, all of the evidence can be exchanged online. We find it will reduce the cost of shipping documents, it will expedite communications, it will reduce the cost of a dispute resolution procedure. It is a useful tool in a dispute resolution process and something that we make available.

I will turn now to the administrative dispute resolution system. We have described in some detail in our Report why we think this kind of system is useful. We have reflected also upon the consensus that seemed to be in the White Paper, that there is a need for a uniform dispute resolution procedure. And we have heard a lot of people say that this would be a useful thing. As we have pointed out and as those principles that we have just discussed, this type of procedure would not exclude jurisdiction to courts. It would be a public procedure the determinations would be posted. A court decision that comes later could override this decision coming out of the administrative dispute resolution process. In paragraph 142 we have a recommendation that a policy to make available a uniform dispute resolution procedure. One, be adopted within the Domain Name's System and two, be implemented by appropriate provisions in the chain of contractual authorities from ICANN to the registration authorities. In other words from the top to the bottom. I think we have been talking around this issue generally today by asking questions like whether there should be a mandatory policy or voluntary policy. The idea though is to come up with a uniform framework that could be useful to those that want to have an alternative other than courts. Because it might be faster, because it might be simpler, because it would focus exclusively on the issue of the status of the domain name. Anyone have comments on paragraph 142?

(Mr. Rob Hall): I notice you don't use the word here "open domains." So, you are saying that all domains should have this. Is that correct? I notice in some of your earlier paragraphs you used open domains and exempt the country codes. Are you suggesting that this is for every domain? And I am a little concerned that you are referring to ICANN as having authority over all registration authorities somehow. I am not sure if that is clear yet internationally as well. So, is it all domains that you are referring to here that should have this or all under ICANN or what do you define that as?

(Mr. Ken Fockler): The preceding paragraph I think tilts towards, as mentioned, the open TLDs. But I have agreed, some of it as a comment we have to clean up and clearly understand the reference to the open TLD, what is it really and what is it with respect to country codes.

(Mr. Rob Hall): Especially if, I think one of the earlier definitions was whether I had any extra restrictions, so if a country code had an extra restrictions it may not be an open TLD, but in fact a country code could be an open TLD. I would hate to see a country codes say I don't want to fall under these so I have to put in some artificial restrictions, so I am not considered an open TLD. So, I think that had better be defined.

(Mr. Ken Fockler): I take it that one of the tasks and the final report or even before then there is quite a bit of editing clarification to be done in that area and a couple of others. The definitions of cybersquatting and some others that we have agreed sort of in the team still have work to be done. But it is good any place, anybody sees things like that, that is what we are here to.

(Mr. Christopher Gibson): Let me make two comments. One, we are suggesting that these recommendations could be useful in open top-level domains and domains where domain names are bought and sold. We are not suggesting that they be mandatorily imposed in the country domains. And secondly, we have no comment at this point and we understand that certainly since ICANN itself is still forming and the Supporting Organizations are forming how that chain of contractual authorities will work itself out.

Let me go to another topic that falls within this area of the dispute resolution. That is the scope, the proper scope of the disputes. Starting with the suggestion in the White Paper it was proposed that the focus of a dispute resolution process be on cybersquatting or warehousing cyberpiracy disputes, as opposed to disputes between parties with competing legitimate rights. So, in paragraph 146 we have raised the question of whether there should be restricted competence for what type of disputes could be considered in this system as opposed to whether there should be competence for all intellectual property and trademark disputes. Our recommendation in paragraph 151 after spelling out some of the pros and cons suggest that we would find, it is recommend that a mandatory submission to the administrative dispute resolution procedure in the domain name registration agreement extend to any dispute concerning the domain name arising out of the alleged violation of an intellectual property right. Any comments on that or disagreements with that?

(Mr. Jonathan Cohen): I think FICPI generally supports the broader use of the administrative dispute resolution system to resolve all disputes. Personally, in a perfect world I think what would be nice here is to be able to establish some kind of international court with special rules. I think IAHC was on the right track originally, that is to try and come up with a set of rules for resolving disputes where the language didn't call into play either the civil or common law, or the particular jurisdiction of any country. I just don't think there is a snowballs hope in hell right now of getting international agreement on avoiding access to courts. But on a longer term I think that would be an admirable approach. And I think where we might be able to start is right here. And that is if there is an effective method that is common to all registries or registrars of resolving domain name disputes with trademarks or any other intellectual property dispute that arises out of the use or abuse of a domain name. That is a good place to start and maybe down the line once you build it and it builds some credibility, maybe it can be more broadly based and even we are suggesting here today. I only have one other comment, that is a little off topic and I will just leave it as a thought. We keep talking about this, I believe the words are as a quick and inexpensive or low cost method. And I have yet to hear anybody anyplace tell me what this is going to cost or give me the slightest idea. I leave that thought with you.

(Mr. Christopher Gibson): I will make a quick comment on the cost point since that was raised and then Phil Sbarbaro has a comment. What we have suggested in the area of cost as you will see in the report is that the cost would be left to the different institutions that may become involved in administrating disputes within this administrative system. We know that at WIPO where we would also be participating in that, that we would hold the cost down to a minimum meaning an administrative fee. There are really three principle type of costs that you would face. One is the administrative fee for the dispute resolution service provider. The second would be the fee to pay the independent neutral. Here, we made a proposal that there only be one, as opposed to possibly three, neutrals that also holds down costs significantly. In that area an institution might determine to try and cap it or they may try to take an hourly approach. One suggestion that we have in at least in draft form is that there would be a cap subject to lifting it, if both of the parties to the dispute decided that it should exceed that. So, the cap on the neutral’s fee. And the third area is obviously the expenses that may be involved travel and so forth, as well as paying your own attorney. All of these costs but particularly the third area are a function of time. And for us the key way to hold down cost is to make this a procedure that is expedited. As we have suggested we think that a domain name dispute in this administrative proposal should take place within a two-month time frame unless the parties agree to extend. We have also pointed out that we would come up with a draft set of procedural rules as an annex to the final report where we would spell out the procedures that would lead to this kind of a time frame. It is only possible if you decide to limit the remedy to something fairly singular and simple like the status of the domain name itself as opposed to considering monetary damages and possibly other issues. So, I just on the cost point give you a couple of things there to think about. Phil Sbarbaro.

(Mr. Phil Sbarbaro): Thank you Chris. Paragraph 151 says that the recommendation is to extend to any dispute concerning an intellectual property right. Right behind trademarks is coming copyright and once you get to copyright and you are into content. This is nothing compared to that disaster so I guess I would recommend once we get back to Geneva that we look at this carefully.

(Mr. Christopher Gibson): Thank you Phil. We have said concerning a domain name registration which in a sense you are not going to get the copyright issues reflecting themselves through the domain name, but you are quite right as we see it there is going to be for quite a long time a set of disputes that relate to the content that is on a website. Those types of infringements relate to copyright as well as trademark as well as other types of concerns.

(Mr. Mike Roberts): I just want to say that some people have suggested to me that the way that this couple of pages is constructed in the Report is reflective of a frame of mind of big 800 pound trademark gorillas beating up on little guys. And for instance, someone suggested to me that the whole notion of the way they want the mandatory aspect of it since the third party isn't burdened by this only the first party, the registrant is burdened if it is mandatory. Then, the entire range of remedies is open to the aggrieved party who gets the option of deciding which of those potential avenues of attack on the alleged defendant. Whereas the defendant has already said hey I agree A priority to do it. And I am not sure that I disagree with the procedure at all, but I think that the way you have written this sort of lands some credence to the notion that this is partly because of who you are. There is a presumption of a stacked deck here and one of the reasons why that presumption sort of hangs out there is because of the legal nature of the right to use that is being conferred here is still at issue. And it certainly not going to get solved right now. And so long as the nature of the right to use as the issue, on the one hand we have to have pragmatic ways to move forward. And on the other hand we need to avoid presumptions of what the balance of rights is here.

(Mr. Christopher Gibson): Thank you Michael and let me add one point that isn't directly responsible, but at least on the issue of cost which I talked about a moment ago. One thing that we have tried to take into account the idea that who would be bringing these kinds of claims. And there we have suggested that all of the costs would be borne by the moving party. In a sense we are suggesting that, if I can find the right paragraphs, that the moving party would be responsible for the administrative fee, for the advance of costs, for the dispute resolution neutral and all of those costs. They would be advanced at the outset of a dispute by the moving party who does have this choice whether to try to move in a court or to take advantage of an ADR procedure. In addition, I think the principles that we have reflected, we have suggested that the applicable law would be the law of the courts, the particular countries that might be determined by the dispute resolution neutral. In light of the circumstances of the case and also the principles that we have identified and we are trying to work on principles that would be neutral as between the two parties. So, we have for example reflected on the use of the domain name on the rights and interests of both parties. So, these would be things that would have to be considered by any dispute resolution neutral. The first-come first-served principle would have to be given weight as well. There a number of principles that in the actual decision-making process would hopefully result in a fair decision.

(Professor Michael Froomkin): Coming as I do from a country which is in thrall of what's called the American Rule on Costs, in which it does not inevitably follow that the loser must pay the winner's costs. I find this provision somewhat difficult to reconcile with the general principle which I think was correctly said at the beginning of the Report that one wants to reflect existing rights and not create new ones. It seems to me that, in so far as some cases may be governed by the laws or jurisdictions such as in the United States, which follow the American Rule on Costs, creating a right to recover costs creates a new right that wasn't available under law. So, I see there is some tension here and one of them has got to give. If I am right about that it would be useful to hear from people as to which one it ought to be.

(Mr. Christopher Gibson): I will give a quick answer, which is we have had this discussion before and obviously within the framework of other countries as well as international arbitration they have a different approach to costs than they do in the United States so that has to be taken into account.

(Mr. Ken Fockler): I just want to clarify. Mike Roberts what I think I heard you saying was you generally agree with the concept in this area but the tone and the way it is written is heavy here? Okay, I agree. Thank you.

(Mr. Mark Partridge): I think in line with Mr. Roberts’ comment, it probably would be useful to recall in the Report the situation that exists now with domain name holders and the risks that their rights can be put on hold in a summary fashion simply by sending an objection with a registration certificate to NSI. These procedures provide the domain name holder with more protection than they probably have now. And I think that as this is being presented is it a balanced approach? That is an important point. It does not just provide protection to trademark owners, it provides protection to domain name holders and helps to prevent the domain name holder with a legitimate interest in a name but no trademark registration from losing their domain name.

(Mr. Jonathan Cohen): I am just wondering on the question of cost, does anybody mention somewhere the possibility of creating categories of people. What I mean is, when you see registration for some international organization they have one set of fees if you are from an emerging or developing country and another if you are a student etc. And it seems to me if you want to preserve this system from (a), abuse and (b), to keep it open to those who are really are small. Because the nature of the Internet is such that you have got many people who are really very small individuals and in fact it may ultimately be everybody who is on it. And on the one hand you have very large corporations and very small individuals. Why not create a set of fees that relates to the category into which you fall. So, that there is some relative fairness to the amount you have to pay.

(Mr. Christopher Gibson): Thank you Jonathan. Fortunately, we have at least suggested in paragraph 194, it is recommended that dispute resolution service providers would be free to determine the level of their administrative fee and the fee payable to the decision-maker. So, as a free market or a market develops those institutions that might determine they want to try to provide ADR procedures, they would be able to consider that kind of suggestion if they think that is a useful pricing structure. It is a difficult issue to treat with. Also to avoid the possibility of abuse or free riders, what we have suggested in the second paragraph of the second part of paragraph 194, it is recommended that the third party complainant as I said should be required to pay at the commencement of the procedure the administrative fee and an advance against other costs of the procedure with the decision-maker having the power to decide in the determination on the allocation of ultimate responsibility for that fee and those costs between the parties. Therefore, a party cannot be assured that it won't at the end of the day at least be facing a decision that their responsible for some costs.

(Mr. Jonathan Cohen): I say, with respect, I don't think that section answers the question at all. I believe that if the fee is set in the open market it will be set at a level where it is reasonable and profitable for whoever is setting it. And since you are going to have many people who are individuals who are of little or no means and they will be precluded from access to the system. And of course it means also that those who are large it is a meaningless amount of money and they can afford to do it any number of times to create advantage in the system. And all I am saying is that there is no way to prevent that entirely, but that this system does not address it. And if what you are going to do is address the needs of the tens of millions of people that it is anticipated will be on the Internet and using domain names or websites or whatever then I think you need to find a way of making the cost in a mandatory way relevant in some way. So, that if the little old lady from Pasadena wants in, she gets in for 25 bucks. And if IBM wants in they get in for $25,000. So, I mean, maybe you can set it up so that the money is returned just as you say with discretion and there maybe some discretion about whether, but otherwise you open it up to abuse and then I will do it myself, I would abuse it for a client. I am going to do it.

(Mr. Rob Hall): Of course then you would have large corporations incorporating small, little entities who are getting and held at the register of the domain names so that a big company would not have to pay the fees.

(Mr. Jonathan Cohen): But you can't anticipate every little manoeuvre, but I think there are ways around that.

(Mr. Christopher Gibson): Thank you Jonathan. Let me just add that of course the same cost problems exist in litigation. And secondly, in the sense of different parties with different resources having a dispute. And then secondly, we have had discussions, for example, finding ways to underwrite this. That is one possibility having in other contexts the same kind of issue of costs has come up whether a company who wants to administer its own dispute or out source its own dispute resolution programme for consumer contracts under-writes that. So, that the parties that come forward to use the mechanism pay very little to have a very quick expedited procedure. This is something that would be if there are those that think that's an interesting type of proposal they should suggest it. This is a difficult issue and we know that particularly because the cost of registering a domain name is very low and therefore a lot of people can register a domain name. But at the same time there are those that feel that the damage can be quite great. So, it is a problem and the difference is in those that might come into and be in conflict is something that I think we need to address. At the same time the way we try to approach it here is to say that the different dispute resolution institutions that might become involved would have had a chance to think about that and address and come up with their own proposals. That's been the approach we are suggesting now in addition to the point I made about a front in advance of costs by the moving party. That's as far as we have gone in this particular set of proposals. We would be interested in any further comments also in the submissions on this that come later. I think Elliot Noss has a comment.

(Mr. Elliot Noss): I think we need be clear when we are talking about the little guy and being disadvantaged by these cost consequences. That we are talking about that little guy or gal in a very narrow context. I think logically by definition this is not going to be the complainant because the complainant by definition will be somebody trying to enforce some sort of intellectual property rights. Whether that be trademark, prior usage etc., I think that is going to rule out virtually in every case that being the little guy. So, we are now talking about somebody who is the registrant of a domain name that is contested by some other party. This little guy, in quotes, will (a), at the registration level likely have some means of identifying whether this might impinge on somebody else's intellectual property rights or not. (b), I cannot imagine a process where the complainant would first make recourse to ADR as opposed to attempting to communicate in some way and identifying the fact that there is a dispute for the little guy. (c), very clearly as you have identified Christopher, on a couple of occasions in this discussion, any tribunal, and body will clearly have scope to determine award here. So, I would suggest that Jonathan's comments with respect to the little guy, that little guy and being disadvantaged come in a very, very narrow context which is somebody who has registered a domain name in conflict of somebody else's intellectual property has refused to turn it over when being informed of it, has gone through an ADR process and has likely been determined in some way to have been fruitless in their registration. So, I don't think that we need be concerned that somebody has been disadvantaged by this cost go forward, I would suggest quite the alternative that this by putting the burden on the complainant at first instance addresses a lot of those concerns.

(Mr. Christopher Gibson): Thank you. As you all probably noticed we skipped right through our coffee break. I know a number of you have been going to the back table. I suggest that we continue unless we have a, does anyone want to take a five minute break or do you want to continue? I am sorry, what I am suggesting is that we don't take a break now. If you want to stop to the back and get some coffee please feel free to do so and that we will continue to go through a couple of other points. Five minutes. We will try to go through a couple more issues in the area of dispute resolution and then we will go on to famous marks and I think that will wrap it up. I would like to end this meeting just a few minutes after five o'clock, so we are going to hold to that schedule. So, I don't think it is possible, if there are certain areas that people want to have discussed you will have to make sure that you raise that with us.

One area that I think could be addressed now is the remedies that would be available from such a dispute resolution procedure. In paragraph 158 we have identified what we suggest are the remedies and as I discussed earlier, the focus would be on the status of the domain name itself in an administrative or ADR dispute resolution procedure it would exclude claims for monetary damages. This also relates at the back end to enforcement. In another paragraph we have suggested that registration authorities would agree to abide by these determinations and that kind of a proposal would have to be reflected in the chain of contracts in the system. In paragraph 158 though, going to the remedies we have suggested that they be limited to a suspension of the domain name registration. The cancellation of the domain name registration, the transfer of a domain name registration to the third party complainant. And we talked a bit of the mechanics of that earlier. And the allocation of the responsibility for payment of the costs. Any comments on those remedies?

(Mr. Rob Hall): Is there anyway to ensure that the outcome of this ADR would not be used in a court to award costs. So, that someone could not simply run to a court of law and say well, your honor you are here just to award costs, because the ADR already settled the issue, they are guilty now just give me money. Is there anyway to preclude that? I am not sure if there is under law, but certainly that is something you may want to look into. So, that the result of the ADR was not used as a de facto proof of the fact the other party was guilty.

(Mr. Christopher Gibson): Well, I think in the development of the policy for this type of dispute resolution system, you can say certain things like these decisions are without legal precedent in the various courts. But ultimately the courts will do what they will and it is very difficult to tell a court how to weigh certain evidence or certain information that comes to their attention.

(Mr. Rob Hall): Could we potentially bind the parties from not using? I am not sure, but I can see as a possible barrier if you go through a quick ADR and lose and then someone can go to court and use the fact that you chose to go ADR against you as proof against some wrong doing without a full hearing or without full evidential hearings in that. It may preclude people from choosing ADR. I am not sure how to preclude that? But if it could, it would probably make more people want to go through the ADR.

(Mr. Christopher Gibson): I think there can be statements that try to limit in using the information from an ADR procedure in a court litigation that might follow afterwards. But even in the area of arbitration where it is normally confidential, parties have found ways to introduce arbitration, the evidence of an arbitration. There is a whole set of cases on that, at least in the United States, where they have and even if they are not supposed to introduce evidence of a prior arbitration and use that in certain ways it is very difficult when lawyers are creative to limit those creative powers.

One point that we have put in as a recommendation is in paragraph 163, as to consolidation of claims. In this area we have suggested that it is recommended that the procedure of rules for the administrative dispute resolution procedure provide for the possibility of consolidating into one procedure all claims by the same party in respect of the same domain name holder where the claims relate to an alleged infringement of the same or different intellectual property rights through domain name registrations in any TLD. My question there is whether anyone has a comment on the scope of what could be joined into a single claim brought in this administrative dispute resolution procedure? We have suggested that you can't join multiple respondents. It can only go against one party, but you could join all the possible registrations they may hold in respect to an intellectual property right that you may hold and that you claim is infringed. Anyone disagree with this statement?

(Mr........................): Again just for clarification. By intellectual property right you mean trademark only, right?

(Mr. Christopher Gibson): I don't mean just trademark and we certainly, trademark is the primary focus, but we have in the Report raised the possibility that there are other types of rights that could be considered like personality rights, other rights that might be brought. Let me raise the question of a time limitation on bringing claims. We have recommended that there should be no time limitation. For example if a domain name has been registered and active for five years, would it be useful to have a time bar? Meaning no one can bring a claim. We found this to be a superficially attractive idea and a number of commentors had raised that with us. But then when you think about it the use of the domain name may evolve. There were those that suggested you never want to preclude bringing a claim if there was some sort of bad faith involved. Would anyone disagree with the recommendation that there be no time bar for bringing claims in such procedure?

(Mr. Jonathan Cohen): Actually, I think the Canadian law is a good model here and that is there is a five year bar and afterwards you can bring it but you must exactly that and show some kind of bad faith or knowledge of the other person's rights when you adopt it etc. And that seems to work pretty well here. In other words, it balances the need for somebody eventually to feel that they have some security of ownership and the right to enforce long-term their rights on the domain name and five years is a fairly good enough time. And there should be some responsibility on the part of the public at large to be aware of domain names, especially if there is a searchable database etc. And I think after five years you don't lose your right as you say, you maintain it for ever in the face of certain kinds of behavior that are considered to be unreasonable.

(Mr. Christopher Gibson): Thank you Jonathan. We tried to, by the way, draft a provision that would provide a time bar, but with the number of enumerated exceptions and found that the exceptions virtually eviscerated the rule itself. It is difficult and if there are those of you that would be interested in putting in a comment or a proposal on that we would be most interested in receiving it. The idea that there might be a time bar of five year, three years or whatever, it would be after where claims should not be brought to challenge a domain name that has been active, but there could be certain exceptions where claims may be brought if there is certain evidence. But, it is a question of what those exceptions to the rules would have to be.

(Mr. Jonathan Cohen ?): If you look at sections 18 to 20 of the Canadian Act and section 21 they are very succinct. They also add one further provision that says that where somebody was using something that had a right in good faith, and then after five years had gone by discovers that somebody else has obtained rights and there was no bad faith, he may still apply to the pertinent authority to continue to use on terms, and the kind of terms that you would thing here, would be like some kind of gateway or something like that. So, you don't necessarily shut the guy out who is a bona fide or first user just because he does not find you for five years. But you make him subservient now to that right, and it is quite short. I recommend that you take a look at it.

(Mr. Robert Hall): I would say that just as I don't think there should be any special privileges granted in the first 30 or 45 days, I don't think we should be limiting to five years. I think in trademark law it may be clear that we are talking about a specific mark and a specific product. In a domain name the infringement may not start until after five years. So, Echelon in my case may be some ISP services online and not be infringing a mark that may be Echelon Book Store has in relation to books. Six years later all of a sudden I start selling books online and I am infringing. Well, to say that I have had the domain name for five years you can't touch me may not make any sense. So, I would agree and support that there should be no restriction based on the date of registration.

(Mr. Mike Roberts): I would just make a comment and we have had some staff discussion about this and that is that five years is an eternity in Internet time. And particularly I am concerned that in any evidentiary proceeding regarding rights, that we are talking about an environment that isn't run like solid, stable, long-standing commercial property legally supported entities where there is a file and people actually keep it up. I really think that with respect to invocation of the ADR on a worldwide basis and so on, that we ought to talk about something that is pretty proximate. Otherwise you are not going to be able to pull the facts together and look at the thing. People will be gone, the converse of trying to keep barriers to enter down and promote competition is that people exit as well. And they exit with their paper work. And yet the name is still there, because we are trying to make sure that this is a portable procedure and that the exist or the registrar does not damage the holder. So, what about a claim three years later, the registrar has exited, the paper work can't be found. This is an area where we certainly need to focus on the practical aspects of it.

(Mr. Don Heath): I like the idea of a term of five years because if I am quietly doing my business with a domain name and then suddenly after five years somebody decides to sue me. Because of the time I put into it I am probably going to win, but I have to go through the pain and suffering and expense of defending myself. On the other hand, what Rob Hall said is a pretty good argument. So, perhaps it needs more definition that as long as I am consistent in my use, I am protected after five years. If something changes the clock gets reset. That may be overly complicated but I want to give an example. The Internet Society sued a company called Internet Inc. two days under the five year limit. They have a trademark, they have a registered mark of Internet and in two days it would have been five years if they had it and we sued for them to cancel. That was six years ago. Now, in that time which has now spanned about eleven years, guess what's happened. Everything that we claimed became true. That is the Internet is generic, how can you trademark this? Nothing has changed in their business but they were bought by another company 'Honour Technologies' appropriately named. And these people new to the thing said what are you guys nuts you can't win this case let's drop the case and settle with the Internet Society. And the point being that today it is obvious to everybody how can you possibly register the mark Internet. So, that five years actually saved us in this case. We were able to beat them and if they had gone over five years, we could not have canceled it, not to say that a suite couldn't be brought later. I just think there should be some sort of term and I think that you could define it in such a way that if there is any change in the way you do the business, then that clock should be reset at some point however you do that.

(Mr. Jonathan Cohen): You are absolutely right. That is exactly how it does work in the trademark world. If you have a registration for specific goods and services, now domain names work slightly differently, and yes you are safe after five years. But if you have been selling apples and oranges and other fruits and you suddenly go into the video business and you run a foul of MGM, because you are MGM Fruits, you are infringing and the five years is useless to you. I mean that is automatic, so I think you are quite right.

(Mr.......................): Sorry, in the exact case of someone like Amazon.com who started out selling books and now sells videos and CDS, they just keep expanding their offering. Are we saying that five years from the date of their registration, no matter what they want to offer for sale they will never be considered to be infringing, and I think that is a dangerous precedent at the setting. Because they are still operating, if you look at the use of the domain name.

(Mr. Mark Partridge): I think the point is that if there were going to be some time limit, the time limit would have to be imposed from when the claim accrused. That is when do you have a basis for objecting. You might not have a basis for objecting when the domain name is first registered, because the use was not infringing. But later, when there was a change then the claim accrued. So, I think everybody seems to agree that if there is some kind of a time limit, it would have to start at the point where you have a claim and changes give rise to possibly a new claim.

(Mr. Christopher Gibson): I think I will go on to three more points in this area of this chapter on dispute resolution. The first, we have recommended in paragraph 174 that a single decision-maker be appointed to conduct the procedure and make the determination except where both parties agree that three decision-makers should be appointed. In standard arbitration there is often a choice between one or three decision-makers, would anyone disagree with the recommendation that you would normally start with one decision-maker?

(Professor Michael Froomkin): I just want to signal who that person is becomes quite important, and it would be useful to hear comments not just on paragraph 174, but also 172 which describes this sort of ideal characteristics of an arbitrator, and does not speak of things like human rights, first amendment law, free speech but concentrates on trademarks. Given that, that is only one of the values as potentially implicated in these disputes, certainly some people have been heard to say that the list is short. It would be interesting to hear other reactions on that subject.

(Mr. Don Heath): The only thing every time somebody says First Amendment rights I always go. Because I live outside the United States 99 per cent of the time and no one knows what a First Amendment right is in most countries.

(Professor Michael Froomkin): Rights under the UN Convention, the European Convention, Human Rights, fill in the blank please.

(Mr. Christopher Gibson): We have also suggested in paragraph 178 that the dispute resolution rules provide for party participation in the appointment of the decision-maker and this is yet another recommendation and that would be the starting point in most of these cases. The parties themselves would have a chance to agree on who the independent neutral would be. And then if that couldn't be the case then we would use what is commonly known as a list procedure where the institution that is administering the dispute would provide a list of both parties and they would rank the names that they saw and then the highest common name would be chosen. Any comment on that provision, or any disagreement? I don't see any.

In paragraph 187 we have talked about enforcement of the outcome of these disputes. It is recommended that registration authorities be required to agree to enforce determinations made under the administrative dispute resolution policy. The Domain Name Registration Agreement contains a provision that in submitting to the administrative dispute resolution procedure, a domain applicant agrees to the direct enforcement by registration authorities of any determination made in the procedure. And three, the determinations made under the Administrative Dispute Resolution Procedure be published on the website. So, we treated with the idea of publicizing the decisions and also as we discussed earlier the remedy is related to the status of the domain name, so there can be a direct enforcement mechanism. That is that the registration authority agreed. Would anyone care to comment on that proposal or disagree with it or raise concerns about it?

(Mr. Phil Sbarbaro): Just the choice of the language in 187 (I), that registration authorities be required to agree.

(Mr.....................): It is an oxymoron.

(Mr. Christopher Gibson): Thank you for the drafting comment. The last area that I would like to see if we can get some comment on in this area of dispute resolution are the principles that were identified. In paragraph 199 and I listed them earlier today. There are a number of guiding principles that would be considered. I think it would be most helpful if those of you would care to comment on this now, or perhaps later in your submissions. We have tried to articulate some of the areas of enquiry that a dispute resolution neutral would look to, in addition to if they determine that a particular national law should be applied in light of the facts and circumstances of the case of the dispute. Any comments on these?

(Mr. Jonathan Cohen): I would just like to ask a question actually. And that is you said having regard to the decisions of various national courts, I haven't looked at the case law recently but a few months ago I did, and there were a significant number of cases in the United States, there were a handful in Britain, a few in Germany and not a heck of a lot of cases any place else. Is that the basis for the principles?

(Mr. Christopher Gibson): I think what we did, at least in the cases that I can recall we surveyed, we had cases from Australia, Germany, the U.K., the United States, I think perhaps New Zealand, certainly France and also Switzerland. It is a matter of taking the cases that were brought to our attention, or that we could find in the various jurisdictions, and then seeing if you can find a decision that is well articulated what the basis for the decision was.

(Mr. Jonathan Cohen): I mean I am just trying to establish that at this point in time other than in the United States where there are a fair number of cases, there have only been a handful in any other country. And only a few countries have had decisions, is that correct?

(Mr. Christopher Gibson): I think actually, you know in a place like Germany there have been quite a few, but you can probably keep the number under ten for those that have really looked into this. Israel has had a couple of cases as well. There are a number of courts and I think it is becoming in that sense more active and the cases do come up.

(Mr. Jonathan Cohen): I understand. Thank you.

(Mr. Christopher Gibson): I don't see any other hands or those eager to jump to their feet to comment right now on this distillation of guiding principles.

(Professor Michael Froomkin): I know the energy level is getting low and some of this may get transmutated into our written comments later, so let me just say there is underneath this a more fundamental issue about the extent to which it is proper for the arbitrators to use a set of decisional principles that differ from the choice of law that a judge or any court of competent jurisdiction would find. And the question has got a number of different pieces. One of them is simply a practical one which is if you are using a different decisional rule the incentive for the losing party to go and then get the national court to overrule it, seems almost overwhelming if they are rich enough to do it and are well advised enough to do it. And therefore, makes the arbitration itself not very helpful, it could just add delays in time. On the other hand, to the extent that a party is not well advised and does not know how to do this, the consequence of the arbitration policy is that they don't then get legal rights to which they were entitled under the relevant national law. I am not personally familiar with an arbitration scheme where arbitrators are instructed to first find that their national law applies, or perhaps not to decide if their national law applies and then having made that determination ignore it, in whole or in part. I mean, certainly when national law does not supply an answer is extremely common in arbitration in terms of general principles. But when national law does provide an answer it is novel to consider that other principles might come in and potentially and override it, especially in a system where people come under the courts anyway.

(Mr. Christopher Gibson): Let me make a brief comment and then I still will have another comment. What we thought was useful in this area is to vest some discretion in the decision-maker because this is a situation in which the parties to the dispute will normally not have had the opportunity to decide on which law might apply as would be the case if two parties are negotiating a contract, they put in a dispute resolution term and they also suggest let's have the law of New York or whatever law they would feel comfortable with apply to the dispute. In this situation, we put in what we found very common in a number of the rules of arbitration centers which is they allow the decision-maker to determine whether under the facts and circumstances of the case at the time of the dispute if the parties cannot agree at that time what should be the law that could be applied. And then in addition, we said there should also be reference to the seven principles or areas of investigation that we have identified which we have also found are helpful.

(Ms..........................): Actually as question and its a sort of a broader question because it relates to this sort of process that is going on and obviously again in a variety of different forms about really formulating norms that are international and that can be consistently applied. And maybe getting eventually to Jonathan's idea of a tribunal that is worldwide and we need them probably in a number of areas. In particular I think a global granting of copyrights would be a welcome step in the right direction. And some kind of dispute resolution there. So, it is really about how these principles reflect national law on a normative basis and whether or not and Mike was having the opportunity of doing the analysis of consistency with the majority of national trademark laws. Interestingly at ISOC last summer, a speaker had done an analysis of the case law and in almost every instance the trademark holder had won in a domain name dispute. So, I think that is a very striking statistic and wondering whether or not how in depth this analysis has been to date and whether or not we might undertake some more analysis of that nature.

(Mr. Christopher Gibson): We would certainly welcome anyone who wants to try and provide more analysis of these seven areas of enquiry that we have identified. We have found cases that support for example the first-come, first-served approach, the Pitman case in the U.K. in which that was essentially one of the criterion for determining between two parties which had competing rights what would happen to the domain name registration. You can look at a number of these and find cases that essentially identified a particular factor. Use of the domain name, how it is being used and then suggest that this is one of the grounds for their decision. As I said earlier when responding to Jonathan's question, we looked at a number of cases brought to our attention, that we found was the basis for trying to develop these seven areas of enquiry. Something like the nature of the top-level domain is something that you will find very little on right now, because they are not differentiated in a way that is meaningful. But, you could find that, that would be the basis in the future possibly for saying to someone you should move your registration from a commercial into a non-commercial domain or vice versa, if you looked at the activity that was on the website.

(Mr. Mark Partridge): Yes, let me just make a comment about some of the things we have heard in the consultations and that is the intent at least in the principles that would be applied here, the desire that we have heard from the trademark community was not that the trademark owners received greater rights than they receive in the non-Internet world but an attempt to give trademark owners and domain name holders the same rights on the Internet that they would have in the non-Internet world. So, at least I think the desire is not to create new laws, but to try to provide a form where the existing laws could be dealt with.

(Mr. Christopher Gibson): I will move now if there is no further comment in the area of dispute resolution to famous marks. I see we have about 20 more minutes and the first proposal is that we have suggested that there might be an exclusion mechanism in relation to famous or well-known marks. We have had some comment on that earlier today. The idea is that we have certainly heard from certain trademark interests that it would be useful if they qualify of having a certain status that they be able to block the use of their mark in relation to a domain name registration in certain top-level domains. And our proposal is along these lines. We ourselves feel that this may not be the most efficient mechanism to address their concerns, but let me start with the recommendation in paragraph 218. It is recommended that a mechanism be introduced as part of the administration of open TLDs whereby exclusions can be obtained and enforced for famous and well-known trademarks. Does anyone want to make an introductory comment on this point?

(Mr. Jonathan Cohen): I think anybody with experience in trademark law or international intellectual property disputes would agree with the idea of having an exclusion for all gTLDs of anything that offends, something that is established to be a famous or well-known mark. As we all know and I won't delay it with the point, the difficulties in determining A, what the heck is a well-known or famous mark and we are having a lot of trouble getting agreement about that at an international level as it is. And secondly, well-known and famous marks come and well-known and famous marks go and I might add that today it is almost an irony that the Internet itself, in theory, could create a famous or well-known mark almost instantly. Something that used to take arguably years of advertising in sales, I mean if you do the right thing on the Internet now you could probably establish either 10 or 20 million hits. And I think any court in almost any country would recognize that as well-known or famous you are entitled to protection. So, I think the principle is correct and I doubt if you will get any argument about the principle. I think the real challenge here is to find an acceptable method for getting everybody to agree how it is going to work and yet it is important. So, I wish I had an answer, that is the opening remark.

(Mr. Christopher Gibson): Thank you Jonathan. Let me just comment the case in Israel of Yahoo was a recent interesting development where the court there under the Paris Convention gave status to Yahoo to someone who had taken that name in that country. So, the Internet is providing a new means for becoming famous and no one yet fully appreciates how that works, I think. In paragraph 223 we have talked about a number of the provisions that would come into play if such a mechanism were to receive support and be proposed. It is recommended that the mechanism for obtaining and enforcing exclusions provide for one publication of any application for an exclusion, and all determination on a centralized website. The maintenance of a publicized list of well qualified decision-makers and the appointment of ad hoc panels of three persons from that list to make determinations in respect of any particular application. The participation of interested third parties and proceedings on an application for an exclusion. In other words, third parties could intervene to challenge this type of application or also support it conversely. At the appointment of panels to make determinations by the administering authority without party participation in those appointments. What you have is essentially a proceeding brought or an application brought by one party where there isn't necessarily another party to oppose it. So, the appointment could not be controlled by the party bringing the application. And finally, the centralized administration of this procedure. There, what we are suggesting is that for generic top-level domains which have an international scope this procedure is something that could be usefully done and WIPO has certainly volunteered or suggested that it would be happy to undertake this procedure. In the country domains the determinations that could be made, first of all would be left to the country to decide whether they want to embrace a different track system in determining as we have suggested in the report whether within their particularly territory they want to also give rise to an exclusion mechanism or to marks that are considered famous within the country. So, this is certainly something that could be done and we have suggested that as a possibility it would be left to those in their respective countries to determine whether that is something they find useful for their country domain. Any comments on any of these particular points?

(Mr. Rob Hall): I have a question actually. In those cases where it was excluded would that mean that the company who owned the famous mark would automatically get a registration and begin paying for it. Or, it would just be excluded from use and someone else could take it or what is the exact suggestion?

(Mr. Christopher Gibson): I think the suggestion would be that it would be an exclusion and they would not necessarily register the name, but they would block the name. They would not be blocking as we proposed it, close variations but literally the specific character set that they suggest would be the subject of their application would be then that which is blocked. And as I mentioned earlier that is not necessarily the most efficient form for protecting marks because it is the variations on the exact character string that are often claim to be diluting and cause problems and other things, but nevertheless (interruption).

(Mr. Rob Hall): If that is the case and it is exact then I have a problem with paragraph 228 which you have added number seven a seventh criteria for determining a famous mark, where you say or confusingly similar names as domain names. I think you are trying to put a definition on a famous mark here as with the seven things and I am not convinced then that you should add confusingly similar at number seven and then state we are going to block everything that maybe confusing, when all the different misspellings and hyphenations and that of it as well.

(Mr. Christopher Gibson): This isn't suggesting that we would block out the confusingly similar, but that as someone brings forward the application they would show as a possible evidence in addition to the other factors that they would qualify for this status that attempts by non-authorized parties to register confusingly similar strings, names could be something that they could also bring to the attention of those that would determine their application. The confusing similar language is a very common language in trade mark law when you are talking about trying to prove a case of infringement or passing off. I want to make sure I covered those with Mike Roberts to make a comment. There was another comment. Did you have a comment?

(Mr. Mike Roberts): Yes, I had a sort of a practical question about that and that is, I assume the intent here wouldn't be to try to overturn any existing registrations in .com. In other words you have sort of accept that we worked out essentially the frictions in that area. So then, if that is true then basically what you are talking about here is a way of dealing with famous names and the creation of new TLDs. Is that more or less what this is all about?

(Mr. Christopher Gibson): Let me just to provide background. Certainly you have the suggestion raised in the U.S. Government's White Paper that there could be retroactive application. We have not proposed that there would be retroactive application. The way that might occur is if someone went forward with an application for a particular name or string. If they were successful, then if they also found that someone else held a registration, they would have to challenge that registration on the basis of the principles and the national law that might apply. So, they would have to try and challenge a registration. I would suggest that they don't necessarily win even if they do challenge an existing registration, because if you take the United States law, for example, they would have to find dilution in the case of a famous mark. And if it is not famous they would have to prove infringement and pass them off as some other things. But it is not a collapsed process, you don't necessarily by succeeding on this application automatically cancel retroactively someone that has an existing domain name registration in .com. So, it would only apply to any unclaimed character sets in .com plus what might ever come your way in top-level domains.

(Mr. Mike Roberts): Certainly by now and particularly with respect to famous marks is way out on the tail of the distribution. It just seems to me that this is a lot of work. If you read what is involved there and if what you are trying to do is to prevent the difficulties we had in .com, the community might be better off to come to some agreement on the principles on which new TLDs will be created rather than putting this pretty elaborate thing which among other things depends on some harmonization within trademark communities and it is not going to happen overnight either.

(Mr. Christopher Gibson): Thank you Mike.

(Mr. Ken Fockler): Mike, the question you have raised generically I think is one some of us have tossed around, as to the study being an academic study with recommendations and what is the implementation and who is doing it which may start to fall more in your field. And as you say and have sometimes said to make sure Phil is still awake, that the .com is a wasteland and there may be a better future out there that some people may figure out. But that may be over to you.

(Mr. Christopher Gibson): Let me also make a comment Mike, on the point about the trademark community and whether they would resolve this question of what qualifies for a famous mark. We are quite aware that this proposal, as I said earlier, was sent to our 171 Member States. We are aware also that there have been a number of those both in our Member States and also in the private sector that have said let us use this particular context domain names as a catalyst to move forward in an area that has not been moved forward in the other world of trademarks for quite sometime. So, we are very interested obviously in receiving comments from those of the Governments that might want to comment, and we have had comments in the past. Those from the private sector, from the trademark community we realize that we have floated something out here and we have also tried to restrict its application. If I just might mention before that, I am looking for a particular paragraph where we said it would not any decision in this area would be without prejudice to what might occur in the national courts or in relation to trademark decisions in any other context, it would be limited to the domain name context. So, we are very interested in hearing comment on this as we did use the current working draft for these criteria from the WIPO Standing Committee on Trademarks.

(Mr.......................): Just so that I am not misinterpreted here. I did not want to suggest that either the Internet domain name community or the trademark community throwing each other's dirty linen over the fence. I think we both have pieces of the action here and we need to work together. And I also think that maybe when you do the next version of this you ought to bring out that the opening up and renewed economic focus on many of the country TLDs is going to import this problem into those areas where it has not been particularly active before. So, it is really not just a gTLD set of issues.

(Mr. Christopher Gibson): Yes, and it was interesting I think at least at one point earlier today there was mention that in Japan, for example, they have a list of what are considered as famous marks within Japan. I believe in China they may have developed a list. There are a number of countries that have felt comfortable doing this, and yet there are many, many other countries that have not felt comfortable doing that. For example in the United States they leave it to an individual determination by a court in a particular case which does occur to determine in a particular case whether a mark qualifies and then under the Federal Anti-Dilution Act they then determine if it qualifies that they have a different set of tests to meet in order to be successful in an action, but they don't have any list approach.

(Mr............................): Just in that context, I had a meeting with a delegation of Chinese Internet people last week and the man who is in charge of domain names, in charge of .CN said they are considering going to a system in China where they would honor dual registrations in their own character set of the same name. And we may see more of that in non Roman alphabet areas where we go to, I mean with now the fact that their versions of Windows over there do their own alphabet and Roman simultaneously on the same screen and so on. So, they are looking more and more towards well why can't the (Huangjho?) tea company have their own language domain name. And on the face of it, it sounds like, well if that is the way they want it in .CN, they ought to be able to do that. But I am not sure how that generalizes yet. My own wheels are turning about that. But we are going to see more of that kind of issue.

(Mr. Christopher Gibson): One other small comment in relation to China, as I understand it is there approach to the famous marks question is that if someone qualifies it could have a fairly significant or draconian retroactive effect. So, their approach is pretty strong in this area. And as I said there is quite a different set of approaches around the world right now.

I will move then to a discussion of the evidentiary presumption which we thought would be a useful mechanism precisely because the exclusion itself is not an efficient mechanism. It covers an exact character set. If we would not suggest that a famous mark holder could bring an application for every conceivable variation or small minor variation on the mark where the character string that is famous. So, this evidentiary presumption is something that I think is worth considering and commenting on. If you look at paragraph 238 we have suggested that it is recommended that the granting of an exclusion give rise to an evidentiary presumption in favor of the holder of an exclusion in the administrative dispute resolution procedure. Not in any other context, but only in the proposed administrative dispute resolution procedure, in such a way that upon a showing that the respondent held the domain name that was the same as or confusingly similar to or dilutes the mark that was the subject of an exclusion and that the registration of the domain name was likely to damage the interests of the holder of the exclusion, the respondent would then have the burden of justifying the continued registration of the domain name. And there what we have done is essentially try to take together the two criteria that are reflected in the TRIPS Agreement for what is needed to show damage and to show that someone is entitled to protection there. The idea of damage and also the idea that the name or the mark has to be confusingly similar or dilutive of the mark of the intellectual property rights holder. Any comment on this?

(Mr. Elliot Noss): As someone who has been on the wrong end of just about every confusingly similar registration possible to Tucows, I strongly support the wording as it is laid out there. Because it would reduce our burden on challenge and we will assume that in a marvelously perfect world that the folks at .com had accepted the process that we are talking about here. And we would then not have to in every separate registration which are unfortunately by different registrants establish the right to the name again. We would only have to address the issue of confusingly similar and detracting from. So, it would certainly and again we probably have a dozen of them out there at any one time, tocows, 2cows, twocows on and on and on. In fact there are businesses out there, there are websites. The one that jumps to mind most is forinternet.com, which lives off confusing similar and does nothing but register misspellings of famous Internet names or well-known Internet names generates traffic strictly on that basis. This is a very real issue and one that is very difficult to police as a domain name holder. So, again I encourage and support the wording as laid out there.

(Mr. Don Heath): I am speaking for Michael Froomkin on this case and he points out that there are the parody sites where people can take a famous name and use it to like the anti- ATNT, or anti-McDonalds, where they can have a site that is not meant to confuse in the sense for their own benefit but to in fact deride the other site which they should have the right to do.

(Mr. Elliot Noss): I would suggest that the language addresses that, and my point was that I would not have to establish my right to the name in each and every case, but establish the damaged and we have some very interesting parity sites out there that we do nothing about enforcing our rights with except have a good laugh around the office. So, your point is well taken, but I believe the language as laid out would address that and (interruption).

(Mr. Don Heath): Don Heath for Michael Froomkin again. And I agree when I read paragraph 238 except for when Michael left the room again it was clear that its covered. I think he was looking at paragraph 237 and probably wanted that language to be less gentle and a little more specific to the point. And specifically its the line in (ii) under 237 where it says that was likely to damage the interests of the owner of the mark that was the object of the exclusion, but that's wording in the document.

(Mr. Elliot Noss): I would also suggest on it that there is a conjunctive there so it is 1 and 2. And that would likely address the issue that Michael raises there.

(Mr. Christopher Gibson): You could take for example the current example Netscape sucks.com for example, and you could think about applying this type of test to that type of parity site and suggest whether there would be damage to the interest of the owner such that should be taken down. My own opinion is that it shouldn't be, but you have to think about those kinds of scenarios when you comment on this provision. What I think we can do is take Jonathan Cohen and then I will just highlight two other points that are in this report that are worth thinking about for those of you that will be submitting comments later and then we will draw this meeting to a close because I think we are just about at 5 o'clock.

(Mr. Jonathan Cohen): I will be quick. I think I agree with the clause in principle but I don't like the language and the reason is because it calls into play American law. That is confusingly similar as more American concept than Canadian. Dilution is an American concept. I also think it is redundant in that it says it causes dilution or somehow damages and I think the dilution, if I understand it, pre-supposes or assumes damage. If you are diluting you are damaging. So, that I agree in principle with exactly what this section is trying to do. I think the language should be changed just to get rid of those words which call into play a specific country's case law or statute. So, that is all.

(Mr. Christopher Gibson): Thank you Jonathan. The last two areas that I just raised for your attention. I don't think we will have time really to treat with them today, but they are both very important. One is in the area of the recognition of abuse of registration of a domain name as a ground for cancellation. In this area what we have tried to do is spell out rather than use terms like cybersquatting or cyberwarehousing we try to spell out what could be considered an abusive registration of a domain name. I think it is very important to look at this in the context of case law and also to determine in your comments whether there should be changes or whether you like the formulation that is here. We put it here even though it could be considered one of the seven principles that I had mentioned earlier in the ADR area, because it is in particular that in the famous marks area they have been the subject of the predatory registrations and have incurred many of the problems.

The last topic that I would just raise here is in chapter five. Where we have raised the proposal of introducing a non-commercial domain as well as a commercial domain for differentiation purposes. And I would think that, that is something that is quite important to consider. We have also found that if you were going to have a non-commercial domain you would have to consider what consequences would attach if there was an infringement and if there was a commercial use in that area. These are points that I am sure those from the trademark point of view would find need to be addressed. So, those are the last two areas in this Report that I would highlight to you today. If there is anyone else that feels like they would like to make a comment before we draw the meeting to the close I will give one last opportunity. Elliot Noss. Okay Elliot last words.

(Mr. Elliot Noss): I would very quickly like to thank you all. (a), for coming to Toronto. (b), for making this a very open and consultative process and I for one certainly appreciate the opportunity. To the extent that I can on behalf of all of us definitely thank you all for coming and doing this for us.

(Mr. Christopher Gibson): Thank you Elliot and also thank you to our co-sponsors and to those of you that have stayed with us through the day we find this is very helpful. We look forward to your written comments, we hope that this was educational for you and we are very interested in getting written comments posted or sent to us to the many proposals in this document. Thank you again.