WIPO Internet Domain Name Process

Transcript: Singapore regional consultation

Subordinate Courts
January 22, 1999

 

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(Mr. .............................): Today's meeting is part of the second series of regional consultations to discuss the Interim Report. Without further ado may I now invite Ms. Liew Woon Yin, Registrar of Trademarks and Patents to give her opening remarks followed by Mr. Geoffrey Yu, Director in the WIPO Office of Global Communications and Public Diplomacy.

(Ms. Liew Woon Yin ): Good morning Mr. Geoffrey Yu, Director, Office of Global Communications and Public Diplomacy, Mr. David Muls, Chairman of the Discussion Panel today, the WIPO Experts, Mr. Harald Alvestrand, Mr. Ken Fockler, Ms. Laina Greene, Ms. (Carlio Twan ?), the Legal Advisor who will be the panelist from the National Computer Board, Ms. Kim Neo, Senior Director, Trade Policy of the Singapore Trade Development Board, and our Organizer. And a very good morning to each and everyone of you. The Registry of Trademarks and Patents and the Trade Development Board are happy to organize this event with the World Intellectual Property Organization. The World Intellectual Property Organization has undertaken an international Process to develop recommendations for a uniform approach to resolving intellectual property issues associated with Internet domain names including domain name dispute resolution procedures. To conduct the Process WIPO has established a website in English, French and Spanish as the primary vehicle for communication. Publish the Request for Comments in paper form for dissemination to the government and industrial property offices of each of its Member States, as well as to each non-governmental organization that is credited as an observer with WIPO. WIPO has also sought to compliment the Internet and paper based consultations with regional meetings in order to discuss and to receive comments on the issues under consideration. The first series of regional meetings was conducted in September and October of last year. The countries involved were U.S.A., Belgium, Mexico, South Africa, Paraguay, Japan, India, Hungary, Egypt and Australia. In January and February of this year, a second series of regional consultations will be held. The confirmed countries involved in this round are Canada, Singapore, Brazil, Senegal and Belgium. Following the expiry of the period for comments and the conclusion of the regional consultation meetings, WIPO intends to publish at the end of March of this year a final report. The report will be transmitted to the Member States of WIPO and the Internet Corporation for Assigned Names and Numbers. A new private not-for-profit corporation responsible for coordinating specific domain name system functions for the benefit of the Internet as a whole. In order to assist it in a conduct of the Process, WIPO has established a Panel of Experts to advise it in the formulation of recommendations. The composition of the Panel was determined in an endeavor to achieve a geographical balance of representation and a balance of sectoral interests in the Internet. Three of the experts are with us today. I understand that 140 people have signed up today, although I believe some may be late or be coming up in the afternoon. We welcome and look forward to your spirited participation and inputs on the issues involved. Thank you.

(Mr...................): Thank you Ms. Liew, may I now invite Mr. Geoffrey Yu to give us his opening comments. Thank you.

(Mr. Geoffery Yu): Good morning. Ms. Liew, ladies and gentleman, it gives me much pleasure in the name of the Director General of the World Intellectual Property Organization known as WIPO for short to welcome all of you to today's event. We are particularly happy that so many of you have come and we are looking forward to a very lively exchange of views. We hope that at least half of you have had time to look at the Report, it is a very thick Report, a hundred pages, and that in addition to learning something in the course of the day that you will also share with us your views in this very important process that WIPO is undertaking. We are very happy to once again be working with the Registry and also with the Trade Development Board, two very close partners of ours in Singapore. I would like to recall that last year we had WIPO with the Singapore authorities organize two events, one of which took place last April and had to do with intellectual property rights and the Internet. So, that it is very appropriate that we have in this second series of consultations chosen to come back to Singapore again. There are in fact two reasons why we thought the Singapore would be a good location for this purpose. One is the deliberate policy of the Government to have in place an open free international trade regime. And the other reason is the single-minded effort of the country as a whole to get itself ready for the twenty first century by using the full potential that is provided by digital technology and the existence of the Internet. And in this connection we are very well aware that WIPO of all the efforts that are being made to promote electronic commerce in this country.

I would like to use this opportunity to also say that WIPO of course is more than ready to expand its scope of corporation with Singapore. With the Government as well as with various sectoral interests and civil society with bringing to fruition the full and creative potential that we know exists among all of you. We are also very pleased at WIPO that three international experts on our international Panel have agreed to spare the time to come to Singapore to share with you their views of the process that has taken place so far, their views on the Interim Report that has been written and also for us at WIPO to listen carefully to what you have to say. The experts I will not introduce because they have been mentioned already by Ms. Liew. I would just like to add that in the course of the day we will be circulating a little bit of information on each and every one of them. I merely would like to add that Mr. Fockler comes from Canada, Mr. Alvestrand comes from Norway and we have a home-grown expert on the international panel Mrs. Laina Greene who comes from Singapore. Thank you to all of them and as well to the other panelists from Singapore who has joined us today Ms. (Core Yu Twan ?). We have a very tight schedule. We have only put aside one day for the consultations, so I very much hope, we all hope those of us who have come for the occasion that you will truly be active and be vocal as well as we hope be constructive. Thank you very much.

(Mr........................): Thank you Mr. Geoffrey Yu. We now come to a substantive part of the programme. We have a panel of international and local experts to start the discussions on the Interim Report. The panel is chaired by Mr. David Muls, Senior Legal Officer in the Electronic Commerce Section of WIPO's Office on Legal and Organization Affairs. With him on the panel are Mr. Harald Alvestrand, Area Director for Operations and Management for the Internet Engineering Task Force. Mrs. Laina Greene, Founder and Manager of Global Empowerment through Information Technology. Mr. Ken Fockler, Founder and President on Internet Consulting. Mr. Geoffrey Yu and finally (Ms. Cor Yu Twan), Legal Officer from the National Computer Board. I will now hand the time to Mr. David Muls.

(Mr. David Muls, Chairperson, Senior Legal Officer in the Electronic Commerce Section, WIPO, Office on Legal and Organization Affairs): Thank you very much. Before actually starting the consultation process I would like to give you a small background overview of what the Process is about. I am focusing mainly on the guiding principles behind the Process and after that I would suggest we turn to some house-keeping matters to determine how exactly we will conduct the process in terms of how people will speak in relation to the various issues that have been discussed in the report. Starting with the background information as has been explained before the WIPO Internet Domain Name Process is basically an international consultation process conducted by WIPO involving both the private and the public sector. The aim of which is to formulate a set of recommendations that are intended to alleviate some of the problems that have arisen due to the tension between domain names and intellectual property rights in particular trademarks. As it has also been said the objective of the process is to formulate a set of recommendations that will be presented both to the Member States of WIPO and to ICANN for implementation.

Let me give you some brief background explanation on some of the fundamental principles underlying the Process; there are seven. The first, and probably the most important is that the Process is inclusive both geographically and sectorally. What does this mean? This means that the goal is that all interested parties should be offered an opportunity to participate in the formulation of the recommendations. Both geographically in the sense that all regions of the world are encouraged to participate and sectorally in the sense that both the public sector and the private sector should have the opportunity to contribute. And the private sector means mainly on the one hand the business community, including the trademark community, but also the Internet engineering community and public interest groups. How has WIPO attempted to make this participation possible? We have done this through our Requests for Comments, which are basically documents, proposals which are circulated both on the Internet by regular mail, and by regular mail on which all interested parties are invited to comment. In addition to these paper based consultations physically or electronically, we have also organized a wide range of regional consultations to offer all interested parties in the world a real opportunity to participate by making their views known. To date, there have been three Requests for Comments. The first one was on the scope of the issues, the procedures and the time-table underlying the Process. Basically, there we attempted to determine what type of issues would be appropriate to be included in the process. The second RFC was intended to address the substance of the issues. That is to say, parties were invited to comment on the substance of the issues that are part of the Process. And the third Request for Comments is the current Interim Report, where we have formulated a set of draft recommendations and where we invite interested parties to comment on.

The second major principle is that the Process is transparent in the sense that all developments regarding the Process are presented to the public on a website. Everybody knows exactly what is going on and every step can be followed. In addition to that we send for those people who are interested in electronic newsletter updating the parties with the latest developments. For those people who have less of an opportunity to access websites we also distribute physical mailings regarding the developments in the Process. The third principle is that WIPO is assisted by a Panel of Experts and the role of the Panel of Experts is mainly to bring to WIPO's attention the various view points and the various communities involved so that we are sure that we know exactly what each community thinks of a particular proposal.

The last fundamental point regarding the Process, or one other fundamental point, is that the Process is formally aimed at the generic top-level domains. But we believe that the recommendations also merit considerations for the ccTLDs. And this is an issue on which I am sure today there will be some observations. So, formally the Process is addressed to ICANN and from the origin it was intended to be addressed to the gTLDs. However, it is believed that certain ccTLDs, certainly those that are open in the sense that they don't require any particular condition to be fulfilled to be registered in the particular ccTLD, could also benefit from some of the recommendations.

A very important starting point in the Process is that we did not intend to create new rights of intellectual property. The sole goal is to accord greater protection to intellectual property rights that already exist and protection that is more geared towards cyberspace. The procedures and measures that may be put in place to achieve this should not impinge upon the enjoyments of other rights on the Internet. Such as those guaranteed by the Universal Declaration of Human Rights. So, basically what we are trying to do, is to take the currently existing system of intellectual property including the way intellectual property respects other rights and make that fit onto the global network that the Internet is in cyberspace. We do not want to create or extend the currently existing rights that intellectual property holders have. Another fundamental point is that the procedures and measures that are intended to be put in place should not at all interfere with the speed and flexibility with which the Internet currently operates and should not condition its future technological development.

Having said that, I would like to briefly sketch for you what the time-table of the Process is. As has been said before, the Process is scheduled to end at the end of March with the publication of a final report which will be presented both to the WIPO Member States and to ICANN. And you may be interested to note that ICANN, and Laina Greene will have some more to say about this I am sure, ICANN is holding a regional meeting in Singapore in early March, and the intention is that the Interim Report and the work performed by WIPO would be one of the agenda points. So, you will have again an opportunity to discuss the issues that are relevant and see how that will fit in with the work of ICANN. I don't know if the panel would like to add something to this. Are there any questions about this general sketch of the fundamental principles underlying the Process? Thank you.

And now I would like to turn to some house-keeping matters. As has been said the goal very much of this meeting is that you make your views known. The meeting is intended to be information-gathering. Why? We will give some explanations regarding some of the ideas behind the recommendations that are including in the Interim Report. The goal is really to have your views so we would hope that you actively participate during the course of the day. Just for your information the proceedings are being recorded. And on our website a full transcript of the proceedings will be published and also a set of audio files that will allow everybody to actually listen to what happened today. I propose to proceed as follows. As you have heard, the Report has basically four chapters. One chapter on dispute prevention, practices designed to minimize conflicts. A second chapter on dispute resolution. A third chapter on the protection of famous and well-known marks. And a fourth chapter on the addition of new gTLDs. And in each of these chapters there are various issues that have been raised and recommendations that have been formulated. I propose that we go through the Report in that sequence and that we solicit views on domain recommendations that WIPO has proposed. I think it is probably useful for you in the course of the discussions to have the Interim Report handy or the summary that you have made of it. I think the organizers distributed the document which is called 'Extracts of Recommendations' which basically contains the italicized paragraphs of the Interim Report. And I think it would be useful for you to have that handy to follow what's going on. If there are no comments or questions I propose that we start with the actual consultation process.

The first chapter, labeled 'Practices Designed to Minimize Conflicts', which can be also referred to as dispute prevention, was guided by the following considerations. During the course of the comment period on the second RFC, on the issues to be addressed on the substance many commentators stated that it would be much better to try to avoid as many conflicts from arising rather than to solve them. And that could be achieved by improving to a certain degree the registration procedures when a domain name is applied for. In the sense that certain contractual clauses could be included in the registration agreement that the aim of which would be to alleviate some of the problems that may arise in the future. It is important not to go too far we believe in adding conditions prior to the registration of domain names, because the ease with which domain names can be registered is very much a big advantage and is part of the speed and flexibility of the Internet. So, WIPO was very cognicent that if we want to do this, if we want to improve the registration conditions we cannot go so far as to start impeding deflexibility with which this activity can occur. So, it was important to strike the right balance in this respect. And the recommendations contained in the Interim Report touched principally on the following issues, and it is on those issues that I suggest we talk today. The first issue, which has in many ways come out as one of the most important issues, is the issue of contact details of the domain name registrants. The second issue that I suggest we deal with is the requirement of use of a domain name. The third issue is the payment of the registration fee. And the fourth main issue is the question of the waiting period. Starting with the contact details. In the Interim Report, the issue of contact details is dealt with in various sub-chapters of the first chapter and I suggest we bundle them together. It will be easier I think to discuss the question. The basic reaction that we got regarding contact details from many IP owners was that when they were faced with a problem of a domain name registrant who had registered a domain name which in their view infringed upon their intellectual property rights, that a practical problem which they encountered was that the contact details which that registrant had provided in the registration agreement often was not reliable. So, that they had significant difficulty even trying to contact the other party before they could do anything else. If they wanted to settle the problem or start some more formal proceedings, they had difficulty doing that because they simply could not reach the other party. So, the IP community stressed very much almost unanimously I would say the need to have reliable contact details in the registration agreement. That should be made available to the public. On the other hand, a certain part of another community stressing the point that the Internet is used sometimes for activities which have nothing to do with commerce, stated that at least in certain instances, it would be important for a user to remain anonymous. So, that in each and every instance imposing the need to provide contact details would unfairly impinge upon the rights and opportunities of such other people. And some of these commentators raised the question of freedom of speech and etc. and political freedom in this respect. So, the basic goal that WIPO set itself with regard to the question of contact details is that if we require those contact details to be provided, those contact details must be treated in such a way that the right of privacy should still be respected. This is really more or less the goal in this respect. And in dealing with this question there are four sub-issues that arise. Firstly, the question of the actual collection of the contact details, which contact details are collected by the domain name registrar or at the moment of registering the domain name. The second question is how do these contact details, if they are collected, to what extent and how are they made available to the public. The third question is, what is the consequence if those contact details appear to be false or inadequate. And fourthly, would it be possible in certain instances not to require any contact details.

The first question is the collection. And here I suggest that we look at if you have the document handy, paragraph 50 of the Interim Report in which the recommendation is made to require the provision of the following contact details. Noting that such contact details could be provided for the domain name holder itself or for possibly a designated agent of the domain name holder. Such that the domain name holder would still remain anonymous as it were, but he would have provided another party who could be contacted in case of problems. And this was an attempt to try to shield the domain name holder from being publicly known. And it is here that I would like to open the floor for discussion. We would like to have some comments on first of all the principle of collecting contact details by the domain name registrar. Secondly, whether those items that are listed in paragraph 50 are appropriate in your view. And thirdly we would like to hear what you think of the possibility of collecting such details, not necessarily from the domain name holder him or her self but of a designated agent. So, this is where I suggest we kick off and I hope that somebody in the audience has some comments on that. First, who is going to have the courage to open the discussion? For purposes of the transcript we would ask that each speaker state his name and affiliation so that we know who is actually discussing the point.

(Mr..............................): (The speaker was inaudible at the beginning of his comment)......................is it possible at all to have a section in the list of contact details wherein the applicant can actually enter the name of the party or whom he is listing the application. The reason actually is this, ( the speaker was inaudible again) as I said often you have optional clauses as well and this would be a clause which would be of use. Firstly to the applicant because the applicant can then be certain that he will not necessarily affected as an innocent third party, whereas making an application on behalf of another person. Secondly, if their anonymity is an important issue then that clause need not be filled in.

(Mr. David Muls): I think we should elaborate on this point. Tell me if what I understand is correct or not correct. I am rephrasing your point. You are saying if, for instance, an ISP is registering the domain name on behalf of Mr. X, that it serves little purpose to have the contact details of the ISP there because what we are really talking about is the domain name registered in the name of Mr. X. And you are saying that at the time the ISP registers the domain name it should have the opportunity, but not the obligation to identify Mr. X as the domain name holder.

(Mr. ........................): Correct.

(Mr. David Muls): Okay. Just to clarify. I think you are probably right that the recommendation as it is written does not make that point very clear. But I think the goal or, let us say, the purpose of the recommendation is that the actual domain name holder and not as much the intermediary would be identified, except for maybe as a designated agent for purposes of contact.

(Mr......................): Correct.

(Mr. David Muls): So, the paragraph 50 as it is written was intended to target the actual domain name holder. Now, one question that I would like to pursue is, do you believe it would be sufficient that this is an optional system?

(Mr........................): I would prefer if it was compulsory, but from a practical standpoint I don't see that happening. Anonymity is an issue and there are certain legitimate rights that people have to be anonymous on the Internet and that has to be reckoned as from a global perspective.

(Mr. David Muls): Let us assume that the person in question would be a bad faith registrant and let us assume he would be a clear case of a cybersquatter. And he does provide either no contact details or inaccurate contact details and the owner of the trademark would try to get in contact with that person and it would be very quickly apparent that those contact details are not reliable. Do you believe that there should be any consequences?

(Mr....................): Essentially, my perspective is this. What difference will this have from the current system, if essentially the information is given as it has been in the past. Surely, the interest here would be to get that actual person. Let us not allow people to hide behind a veil, that is basically the issue that I have here. And if this were to stay as it is, I would submit that without at least an optional clause, and I must stress at least. I would of course love if it was compulsory, but being a practical person I don't see that happening. And if there are legitimate anonymity rights as well.

(Mr. David Muls): May I open this, unless there are any questions at this stage.

(Mr. Ken Fockler, Former Chair and President, Canadian Association of Internet Providers): Hello. It is Ken Fockler. I think I agree with what David was trying to explain and may be it does not come clearly in this section. That it is not expected that the ISP or the registrar would put their name here. Everywhere that I have been involved in the hearings the registrars, the ISPs and others want to avoid being in the middle of the conflicts. And the whole system I think is also intended that they do want to be liable for having to serve notice or be responsible for that sort of thing. So, there may still be if it is my daughter that has registered this domain name. She may want to use an agent for service processes or just her own name. But I really doubt that the ISP is going to put that in there. May be that needs to be clear and then later on in the whole set of recommendations the consequences for false information or information that is not successful, and now it is very sensitive, but on time of renewal of the registration or whatever may take place, if the contact information does not appear to be appropriate it may not be a problem until a challenge arises. But when a challenge arises then there are potentials in here for a take-down process if required. But that was the intent.

(Mr. Harald Alvestrand, Area Director for Operations and Management, Internet Engineering Task Force): You know I am a technologist not a lawyer, and seeing this from a technology perspective you have to realize that when you get the registration form and you get an address in there, there is no way that either the ISP or the registry or anyone else can know whether the address listed is that of a registrant. The registrant server for due process or an interested third party who is willing to answer questions. So in fact I think that from a technical standpoint there is no real problem as long as we don't expect to be able to imply from the name listed in the database what rights to the domain name that person has. The idea of a contact is not that you should be able to evaluate its rights, its that you should be able to get into contact with them. I think that perspective needs to be perhaps made more explicit in the Report.

(Ms. Laina Greene, Advisory Panel Member, Asia & Pacific Internet Association): First of all I want to say that comments that are made, I see from the Panel of Experts are in no way defending or supporting the Interim Report, just comments. I think one of the clear issues that will determine whether or not people will be comfortable with the contact information would be largely dependent on this issue of availability as well. And you make that distinction in the Report between the collection and the availability. I think if availability has been clearly determined in a way in which there can be a balance of interests protected. For example, it is not only on the basis that someone goes to the neutral point that collects the data for example, requesting for the information but there be a justification. I think that was implied here, that there be a higher level perhaps even the permission of the person before the information is given up. A higher level of availability standard then I think people could probably live with a greater detail of information. Of course you do run into the situation of mal-fide and those people may not give their consent. So, there may have to be a mechanism to be able to determine clear abuse situations and therefore, I think if availability if controlled in some way especially by a third neutral party that would help. The second issue you raised which is also very important is the consequences of false information. And I think that is an issue that is justifiable. My only concern with that issue would be again putting in a higher standard of when the cancellation is done. How long of an enquiry do you have before you actually cancel because in the Internet world people move very fast physical locations. I mean I am a single foreigner just moved to Silicon Valley in the interim you might try to contact me, if you don't try to use my e-mail you may not get a hold of me, if you use my e-mail you will. People may be in the process of changing service providers, e-mails can change, you know the virtual hopping might change. So, I think some level of ............ there as well is very important. And with the issue of anonymity and appointment of agent the only thing that I have to say about that is again I am a little concerned about shifting the cost to the applicant in its issue of anonymity, you know where there are legitimate rights, where there is a child or political person who is making comments against their government in whatever country it may be. That perhaps instead of getting them to appoint an agent which definitely would incur initial costs, perhaps we may want to consider a neutral agent that is determined and pre-determined upon which there is either no cost or minimum cost. Again this is tied back I think to the availability issue.

(Mr. David Muls): Thank you. May be we can just come back to a few of the questions that were raised. I think it is important as a legal matter because consequences will flow from that to at one point make a decision whether the provision of contact details is an obligation or just an optional feature. Now are there any persons in the audience who have any additional views on this whether a registrant should be obliged to provide contact details, and that such contact details should be reliable. The first speaker said that he would prefer that this be an optional system. Is there anybody who would like to take the view that this should be an obligatory system with certain consequences flowing from it?

(Mr. Mathias Kerber, Network Services Manager, Singapore Telecom): My name is Mathias Kerber from SingNet and SGNIC, but all the comments I am making here are my private comments as I am not speaking for SGNIC in these comments directly. I think it is very clear from the operational point of registrars that collecting this data is obligatory. Because the registrars have costs and they will have to bill. So, just from an operational point of view you always already have to collect this, so I don't think there is an additional burden on the registrars or on the registrants to provide this information. The real question is whether this information should be made public to anyone who wants it, as in a public Whois system, or someone who thinks or represents they have a legal reason to have this information. And to go a bit forward in point 53.1 is a statement that: 'applicants should make a representation regarding the registration of the domain name and its use'. I think similar in point 55 there should be a similar representation by someone who desires this information that this is only to be used for a specific purpose like a processor and not to be put on a CD-rom for spamming sales or something like that. So, in this process of desiring this information of the particular registrant, the person desiring this information shouldn't have to make a representation that this information will only be used for this one particular case and be fired but perched from any other information that is being given out or that it will not be made available to third parties afterwards.

(Mr. David Muls): Thank you. Just to pick up on the point about what is done, what is this information used for. In the report it is stated that if the contact details are collected it is basically for two purposes, and only for those two purposes. First purpose is to allow the registrar to actually get in touch with the registrant for purpose of the transaction of registering the domain name, billing etc, etc. And the second purpose would be to allow third parties in case they have a genuine problem with that domain name registration to get in touch with the registrant. Obviously the goal is not, and there should be a restriction on making those contact details publicly available as mailing lists for spam etc, etc. If I can summarize the point about collection, would it be fair to say that in the audience while there is apparently no necessarily unanimous feeling that people are in general comfortable with the idea of requesting contact details? But that the principle question is once those contact details have been requested on the one hand how are they made available and to what extent are they made available? And on the other hand what is the consequence if they are not reliable in terms of the registration of the domain name? Is that a fair statement at this stage? If that is a fair statement I would suggest that we move to the next sub-point which is (interruption).

(Mr. Chang): My name is Chang, I am a consultant. I would like to bring up a point on name. Because if I am car ABC, there may be 20 other ABC in my country who share the same name. So, if I live in a room that I rent I won't be able to use the address to register. So, I have a P.O. Box ABC, P.O. Box maybe ABCD. And yet, that would not prove that I am trying to run away, I am just being fair. Now, I would like to suggest since ABC there are 20 Mr. ABC, but with 20 different IC numbers or the passport number. If you want to include passport number as an encryption, then you will distinguish Mr. ABC from another Mr. ABC simply because my details are different essentially in my passport. So, if this passport were to be included in this registration process is it fair or is it necessary or not? I just want to know.

(Mr. David Muls): Maybe I can give a brief comment. The goal of the contact details, the provision of contact details would be to identify the domain name holder. I think the point is made a fair point that if we were only to ask for the name that would be insufficient in terms of getting in touch with the domain name holder. We would need other contact details to allow us to uniquely identify the holder. However, we did not feel that a passport number would be required. We believe that if we ask for the address, the e-mail etc, etc, that, that in the overall majority of the cases should permit us to uniquely identify the person in question. So, unless the Panel has any other observation on this point I would like to invite the gentleman (interruption).

(Mr. Mathias Kerber): Mathias Kerber again. Three comments to this. A, I have had seven different passport numbers in my life, half of them are no longer valid. It’s not like a unique number that you keep all your life so this would definitely not work, it is not better than an address. On the other hand, there are technologies available on the Internet and somewhere, I am talking PGP and SSH, to provide a unique identification in the public key system. And even though I think it is currently not possible to mandate these, I think a big comment should be put into this RFC to say that technology should be developed to make this encryption and identification technology easily available and widespread and then encourage the use for identification of the registrant. This will not only allow the registrars and someone who wants to serve them notice on a registrar to identify the person and make sure he got the right person, but also to allow the registrars to see that it is really the person who has the rights to change contact data for this domain to know even if the e-mail addresses and so on change. So, I think the comment should contain very big recommendation that this public key technology should be used for unique identification and that effort should be spent on making this available freely and to teach people how to use them.

(Mr. Alvestrand): Encryption too much is lovely. One thing you might want to think about is that encryption too much is absolutely perfect for getting assurance that a message comes from the same person who has sent the previous message. So, for the up-date of a domain name data it is an absolutely perfect fit. When it comes to actually getting hold of the person, it’s of a very limited usefulness because it is perfectly possible to encrypt total nonsense. And there is no way you can go from the total nonsense to get the valid address. So, yes we should definitely recommend that cryptographic techniques be used wherever possible. However, it is only of limited usefulness in getting hold of the person. It is very useful to be one hundred per cent sure you get the right person once you get it. But it is of limited use locally.

(Mr. David Muls): Thank you. Maybe we can move to the second point, the making available of the information and here allow me to give you some additional background, a short additional background about the recommendation. This has been probably one of the most delicate issues, is to what extent do we make the information available and how. And I must maybe add for the benefit of the public that this is not only an issue that has been considered important by certain segments of the Internet community, but we also have been in touch with the European Commission when we elaborated these draft recommendations. And the European Commission, who you may know, has a very important Privacy Directive which has become operational a couple of months and had significant feelings and opinions about how such information should be made available. And I think the balance or the view that ultimately came out is that on the one hand it is recognized that in certain instances it is important to make that information available to a third party who may have a legitimate claim against a domain name holder. On the other hand, that information should not be made available in such a way that it could be abused by third parties and should not be made available publicly if there is no real legitimate purpose for that. On the basis of these views regarding this question we have, and because it is a delicate matter, we have included in the Interim Report basically two approaches, two possible approaches and we would like to have your comments on this. One approach which has been I think the approach that is favoured by at least, in an initial period by the trademark community, is that the information should be made publicly available on the website such that any third party can query the database and principally the query should be possible on two items. On the one hand, the name of the domain name holders and on the other on the domain name itself, the string or some part there of and any queries that result in matches in the database should produce a report providing the full contact details of the domain name holder in question. So, this would be a pretty open system in the sense that anybody could enter anything in the interface to query the database and all the records would come up. The second approach, a more restrictive approach is based on a filter concept. In the sense that there would be an interface that would permit querying on those two fields, the name and the domain name. However, not immediately a browse list of correspondent records would appear, but there would be an intermediate step, possibly also implemented electronically. For instance, a screen that would require the person who requests for this information to justify why this information is being requested. Possibly subject to technical possibilities maybe the IP number of the person who requests for that information could be captured at that stage, so that we know who has asked for the information. And only at that stage would the actual contact details be released. So, the basic principle is contact details should be made available, we agree with that. But there are two ways of doing that a very open way, the first approach and a more restrictive approach with a filter. Could we have some views on those two question. First of all the principle of making the information available. Should it be made available at all? And on the second question how should it be made available?

(Mr. Mathias Kerber): In general I am in favour of making the information available, but not in any public manner that any third party can get a whole list or get this list on demand as and when they want to. The second approach that was listed is much better than the first one. The one example is spam. We have seen e-mail addresses out of the Internet databases going around over and over again. So, we have to stop that. However, I think that due to technical restrictions it is impossible to identify whoever asks for this information and putting filters in that only allow you to get five or ten rackets per day or per minute will also not help because people know how to direct the different portes or the different ISPs and try from the next IP address again. I think if the only reason to provide this information is to provide an address or contact for serving legal documents, it is not too much to ask for the people who want the information to contact the registry directly in a written manner with their letter-head, signatures and so on to state their reason and to get it that way. Rather than to open an electronically for people who know how to heck around it and to get this information anyway without being able to be apprehended.

(Mr. David Muls): Thank you. So, I summarize in favour of making it available, however note this availability should not be electronic, should not be through the web but a physical request, a separate request should be addressed to the registrar.

(Mr. Mathias Kerber): Unless an encryption mechanism like PGP where such a legal house could register with the registrant, leave their PGP key there, identify them before hand and then only use this method to get at this information so that unique identification is given. In those cases I could see an electronic access to it where you can identify them. In any other way no.

(Mr. David Muls): Thank you.

(Mr. Ken Fockler): I just would like to clarify some terminology. The gentleman who just spoke, you suggested get the details from the registry. David repeated it and used registrar. We have wrestled with all of this. In your mind which one are we talking about? Whoever who has the authority to ask and where might the information be available are they going to approach the registrar which might be here in Singapore or the registry which might be in Washington or something.?

(Mr. Mathias Kerber): That is a question that I have not really thought through since our registry we don't have a registry/registrar distinction at the moment. And it really depends on the arrangement between the registrars and the registry where this information is kept. I could envision that registrars keep the information of who has the domain and the registry only has the fact that this registrar holds the information. In this case you will have to approach the registrar, in which case you will have the problem that so many more registrars have to follow the same procedure and you have so many more places where you have to send in your PGP key to identify yourself. On the other hand, it is essential registry once it hacked it is much more dangerous so I think this is a separate question but we should identify it as the authority that keeps this information and leave it at that.

(Mr. Ken Fockler): Okay, great thanks. I might just add that in the hearing in Toronto which seems like a long time ago, two days ago Monday, even though there are three days in between, Mike Roberts was there who is the President of ICANN. He spoke a little bit to this issue too and foresaw contract arrangements certainly between ICANN and the registries and then a best practices system might involve then, a best practices contract arrangement if required between registries and registrars where some of this might be as well laid out. And then again best practices which we are talking about in some of this information here are registrars to the registrant, the person asking for it. And then that is the kind of the whole process we seem to be leading to a series of levels of agreements and best practices.

(Mr. Harald Alvestrand ?): I was thinking of the reason why my contact details on the RIPE database for one of the domains I own is correct. Some months back I got a letter from a friend of mine who actually runs one of the domain name servers for that domain. He said, ‘Look at the RIPE database, that address isn't valid anymore is it?’ And I said, ‘no,’ that was my address with my previous employer.’ Now, if that access had been filtered requiring him to supply his information and legitimate reason for looking up the information would he have bothered? No. I have no problems with the idea that some people should be allowed to hide their information however they want. But I don't want to lose sight of the fact that to me and to a lot of other registrants the fact that this information is publicly available to anyone who wants to look is actually of value to me. So, there is some baby and some bath water here.

(Ms. Laina Greene): First of all I just want to pick up on that point that you raised in terms of using encryption technology from the applicant's side of point of view, but not in terms of a contact detail but identifying who you are. It will be interesting to apply that in terms of the complainant as well as a mechanism. I think you do need to have, as much as we assume mal fide on applicants we should also assume there might be mala fide on people trying to get the information. So, one interesting thing I think we need to look is considering even having that person who is asking for it give their contact details. Which was suggested, but only suggested for the purposes of the automatic take down which was then erased. It was not suggested later on in terms of your availability.

(Mr. David Muls): It was.

(Ms. Laina Greene): It was. That was not the way I read it. Okay, anyway and then secondly, in terms of that justification we may want to have a clear criteria or standard indicating on what is a justified request and what is not. And then we may even want to consider consequence. What if the person has falsely said that, what is the criteria you had here, a sworn statement that the third party has the authority to enforce the rights of the intellectual property holder and a statement that the third party has a good faith belief that the use. And what if those statements were false. What is the consequence?

(Mr. David Muls): Just to clarify. I think you are maybe going already to the takedown procedure which is not the actual requests for the contact details. It is two different points, but we can address that when we get to the takedown procedure. Can I maybe ask some more views on this interesting question of, to the extent that the access should be limited, should it be based on a separate paper based request and the access would not be on line? Then that may have a disadvantage of restricting the owner of the information to actually see that it is out of date and update it. Or should it be made available online through a filter system? Any more views on this particular point?

(Mr. Sreenivasan Rajesh, Associate, Rajah & Tann): I just want to say it defeats the purpose of having online environment if you can't make online requests. The issue here is the giving of the information. Not so much the requesting of the information. So, I think that and so far as the application is concerned, I don't see why we can't taking with Laina’s point as well, so long as there is a sufficient means of acknowledging that this is in fact a valid request from a person who can be easily identified and particulars of that person who makes the request is provided through the online medium. I believe that the request can be taken into consideration, but the issue here is whether such information should be provided online. There perhaps I can agree that there is an issue. If you provide it online there is a chance that you might dissipate and others might come into possession of your information. But as far as a request is concerned I don't see why it has to be in writing.

(Mr. David Muls): One more question about the justification for why the information is provided assuming that’s why the information is requested. Assume a person, third party requests for the information either online or through a physical letter. And indeed we suggested in the Report that there should be justification for that request. Do you believe that the registrar or registry, let’s call them registration authorities that is what we have done in the report to avoid the question. Should the registration authority read and evaluate that justification? Is it in a position to do so? Any views on this maybe from the registration authorities? Let’s assume a person asks for the contact details irrespective of whether it is online or through a physical letter and that person writes in that request why it wants those contact details. Would it be possible for the registration authority to analyze that justification and make a determination. Maybe the audience?

(Mr........................): It may be possible that the registration authorities would definitely not like this because its additional work to be done. On the other hand, I think if it should be done, it should be done on very simple terms and it should rather be that the registrant be informed that this request was made by a certain party, or the information of the request that should be given to the registrant. And only in very obvious cases like we want to add this into our spamming database should it be rejected out hand, other than that it should be provided and then the registrant can take action against the requester if this information was of use. There is a certain amount of trust here, but as long as we can identify them, just identifying the requester and then knowing where this information was given to should take care of ninety per cent of the problems where this information is just being sold for spam and so on, which is the biggest problem that we are seeing. On the other hand, to answer to Harald's earlier comment, I think it should be very simple to ask in the registration like what NSI did, should the information be public or not? And if the applicant just signs ‘yes, I want this public,’ then make it public. That is a very simple technical thing to do and if he doesn't see that being spammed is such a big problem, but that he wants people to look after his address for him that's also fine. On the other hand, where a registration authority could go and send like yearly e-mail up-dates or snail mail up-dates or maybe by-yearly to the registrants saying please check your information is this still correct. Then in this case this problem will also not happen. But opening up voluntarily for public exposure is a simple technical thing, it should be provided and then this problem is being taken care of.

(Mr. David Muls): Thank you.

(Ms......................): I think Mr. Muls mentioned a while ago, the reason why there is such great concern is because of the European Union State of Protection Directive. We have to also bear in mind that I think in so far as the various countries are concerned, I think they have currently different considerations given with regard to data protection. I think data protection laws are very strong in the EU, but not so much as in the, for example, the Asian region. So, it might be at this point in time as I would say a small price to pay to make the data publicly available in that we traditionally do not have a culture where making data available is frowned upon. So, I think we have to balance the interests as well for the registration authority in that even if you have criteria I think there would be an overhead for the registration authority and the question is who is going to bear that overhead. Should it be the registrant or the registration authority itself? And even in going through the criteria I think it is going to be quite difficult for the registration authority to make that judgement call.

(Mr....................): I just want to say that I don't agree with the point that as soon as a person asks for information then the registrant should be informed that there is someone asking for the information. Because many a time the registrant would refuse to consent to the information being requested. And then if that is the case then it defeats the whole purpose of asking for the details, that is the first point. So, the first one is that I don't think when I ask for the information the registrant should be informed that someone is looking for you or seeking details about you. The second point is that, I think the registration authority should be obliged to give information, to give contact details. True, there may be some concerns concerning online availability. I said that argument maybe you know it can be abused. But at least a restricted form which is seeking information through the registration authority. And I think it does not cost very much for a registration authority to keep the information and to release the information, provided genuine reason is given for a person asking for the information.

(Mr. Ahmad): My name is Ahmad and I am afraid I am lost. Are you talking about the Whois database?

Mr. David Muls): Yes, I think so.

(Mr. Ahmad): And why don't you discuss what is the existing system and what is the problem and then later on the Whois. Thank you.

(Mr. David Muls): I think that the system is that at least for some registration authorities the basic problem is that the contact details in some cases are either non-existent or unreliable. As a result of which a third party that may have a legitimate claim with regard to a particular domain name has significant difficulty in identifying the holder of the domain name and therefore taking action be it just getting informally in touch with the person or taking some more formal action. That is the problem. What we are trying to see is how that problem could be remedied. And that could be remedied we believe through potentially, possibly imposing an obligation to provide reliable contact details. To have a system available that would make such contact details reasonably accessible by a third party who has a justified reason to get the contact details. And thirdly, to get to determine what the consequences should be of unreliable contact details. I think that summarizes a little bit what we are trying to achieve.

(Mr. Ahmad): If that is the problem, why don't you take down the SOA back-up where the name servers are? That is more practical. Thank you.

(Mr. David Muls): I am not sure we understood the question. Do you want to clarify that?

(Mr. Ahmad): Why don't you just trace down where the domain name is using the SOA back-up?

(Mr. David Muls): As a legal matter you can't do anything with regard to the domain name if you don't have any contact with the domain name holder. You can't just cancel it or do something.

(Mr. Ahmad): It contains the contact e-mail address.

(Mr....................): Technical explanation. In each zone of the domain name system there is a record that says among other things what the name server belonging to that zone is and also the e-mail address of the person maintaining that zone. The big problem with the SOA record is that it tends to be totally bogus. It is usually either root at somewhere or host-master at somewhere, occasionally post-master at somewhere. Where somewhere is usually the machine running the name server. In some cases that is good enough, in some cases it is someone who is able to handle technical questions but has no idea of who really owns the domains. In some cases it is simply not available. But it is definitely under the control of the domain name holder, so yes it exists.

(Mr. David Muls): I suggest that we move to a next little important point with regard to the contact details and that is let us assume there is an obligation to provide them. Let us assume that, that information can be accessed by whatever means by a third party and that third party wishes now to contact the domain name holder. And it appears that the contact details are not reliable. It also appears that the third party has made reasonable steps to contact the person in question, has not only tried his e-mail address but has also tried sending faxes and has also tried sending physical letters to the address of the domain name registrant and it is just impossible to get in touch with the person. What should the consequence of that be? Should there be a possibility in such circumstances of actually canceling the domain name? And if yes what procedures should be in place to do that. We have proposed for discussion in the Report two possible procedures. On the one hand a more direct procedure by which a request would be addressed to the domain name to the registration authority to cancel the domain name in such circumstances provided the domain name registration authority does an independent check of those contact details. And on the other hand, we have proposed a more elaborate procedure whereby that request for cancellation should be screened by a panel who has to make a determination whether it would be fitting in those circumstances to cancel the domain name. So, basically two questions, do you agree with the principle of cancellation and second of all how do you think such cancellation should be achieved? Anybody would like to make a comment on the principle of the cancellation of the domain name in case contact details appear to be wrong? Does anybody have a problem with that?

(Mr. Tan Tee Jim, Partner, Allen & Gledhill ): I have no problem with that. I think I support a cancellation in principle and also with the procedure, because there is a question of bona fide, a question of good faith. When you give your details to the registration authority there is an element of good faith. And I do think that the obligation is upon you, if your information is wrong or if the information has become inaccurate to inform the registration authority to make changes, that is the first point. The second point I would want to just backtrack on this availability of information. I just wondered why don't we adopt the same system as in a telephone directory. In a sense that those people who want the information, the contact details to be made available publicly and online they can in their application form say so that I am prepared for my details to be released. But for those people who don't want their information or their contact details to be released publicly then they can say so in the application form. And in the latter respect, if anybody wants to contact such people whose information is not publicly available then you can contact the registration authority for details. Why don't we have that system, a sort of a compromise system? And I don't know whether the Panel has considered this proposal before.

(Mr. David Muls): I think that picks up on a suggestion made in the audience and that is certainly a useful thing to think about. And if I can summarize it, a person who registers a domain name has to make a choice. Either he wants his information to be publicly available and then it is accessible online. If he chooses not to, it remains available through a physical letter addressed to the registration authority. It seems a useful approach to think about.

(Ms. Madelene Sachithananthan, Legal Assistant, Elea Cheong & G Mirandah): I am Madeleine Sachi from the local law firm of Elea Cheong & G Mirandah. I do agree with this basic principle of cancellation. In fact if I would draw a parallel with the registration of company and business names in Singapore, I have been involved in actions where in seeking to cancel the business name that was registered, but this business has become ineffective. From what I understand of the registry of companies and businesses system and what I did was my firm acted for a Singapore company and it came to their attention that there is another Singapore company that had registered a company name that was one of the elements was identical to their name, and they sought to cancel that other company's name. And all reasonable efforts were made to contact the registrant but the business name had expired, they were no longer at the registered place of business and therefore we made submissions to the registrar of companies that it should be struck off. I think a similar sort of principle can be adopted in the case of domain names if the person requesting the information has made all reasonable efforts to contact the registrant and no contact can be made or if the registrant does not reply. For example, the registration authority could notify the registrant that somebody has tried to contact him and to give him a period of time within which to respond to the challenge by the requester that they want to cancel his registration name. If within this period there is no response or the registration authority could not contact this person, then I think the name can be canceled. Because if the registrant is no longer interested in keeping this name then there is no reason to keep it. And I suppose you could also put in another sort of condition that when the registration authority cancels a name he will again notify this registrant and give him an opportunity within a prescribed time limit to object to it or to raise some other reasons why he should keep that name.

(Mr. David Muls): Thank you. A few comments from the Panel. Mr. Fockler.

(Mr. Ken Fockler): I would be interested in knowing, now that you have gone all the way back to your seat how long a period of time you might be thinking about that the person would have or the company if they weren't being able to be contacted you said after a period of time. One of the thoughts that I might interject here and we will get into it probably later this afternoon if we have time is the whole question of other new top-level domains. The thing we are experiencing especially some of us in North America and Canada particularly where we use a lot of .com and not so much our country code, is that we have individuals getting all mixed up with businesses. And sometimes in these hearings and processes the assumption seems to be that the person requesting a domain name is a business, they have to state what their business purpose is, they are going to use the domain name and all the rest and we may get into that. It may be my daughter who isn't all that young anymore because I am getting old, but she might just want to have a site to express her views and do book reviews which she does. And she could do that by going to some company that offers those kinds of services and I think by and large that is what people would do. But the way this system is now, she might get a .com or a .org or a .net. But she might go to Europe for the summer and be unavailable to be contacted. These are some of the concerns that other people raise because abuse can happen on many different sites, maybe she registered a really neat sounding name that somebody else thought up. I am going to send a pretty heavy handed letter to this individual that says I think that name would better be mine and I have got a hundred lawyers to back me up and you only paid $35.00 for it and by the way I can't seem to find you. And all of a sudden she comes back from Europe and she does not have a domain name anymore. Those are the conflicting balances and then I am saying it a little strongly because there are other people and other members of our Panel and others who have brought these to the fore. And some people have suggested, me amongst them, that perhaps someday different top-level domains may or may not help with this. Where there may be places where businesses are more available and people doing other things, but right now we have a mix and this is what we have to be careful of. So, again I am kind of wondering when you said a period of time, in some people's minds that is a few weeks, is it half a year, could it be? It would be interesting from your point of view.

(Mr. Ng Wei Min, Director, Trade Development Board): Maybe while she is walking towards the mike I will just make a few comments. Ng Wei Min from the Trade Development Board. When I look at this, I think chapter 53 or 50 you mentioned earlier on, I noticed we are still thinking on the platform of snail-mail, address, phone number, fax and so on. And actually, it does not improve the situation because even if you get a postal address, if you contact this gentleman like what the lady says here, it can be a defunct address. So, thinking on a cyberplatform, basically what you need is when you register a domain name perhaps make it compulsory that you have a contactable e-mail. I think most of the registration authorities have that now. Now, what they do not have is that a compulsory website. Now, the reason why I suggest a compulsory website is that you notice that it costs you only what 25 or 35 bucks to register a domain name. And many of them go out of their way to register domain names so that perhaps in the future they can sell them. If it is nice sounding for example they sell them for a tidy profit. So, tie it to a website, the website would be the in a way the official residence of the domain. And the website would have this e-mail address. So, the e-mail address is in fact the person’s contact point, not the postal address and so on. Now, to specifically answer your question about what esteem reasonable time before we strike off the domain name, I would think in e-commerce time you would probably thinking in terms of months rather than years. Because of the speed of development of the Internet economy and all, with the year you are almost out of the economy. So, before I answer the question I think anyone who has a decent e-mail address should check the e-mail at least once a week. Now, if the person does not check the e-mail address once a week then I think that the e-mail address is just for play or for protection of a particular identity or domain. So, I would say you need to check it at least once a week and I think if your daughter goes to Europe for holiday for six months then I think she deserves not to have her domain name struck off. So, my suggestion is that a period of months, a figure that comes to my mind is somewhere between three months to six months, and there is a final check that the registration authority would do a final check to see whether the e-mail is still active or not. And if it is not active after several tries, maybe you strike it off. I think we need to think in terms of months. If you want a figure, three months I think is reasonable for cybercommerce. Thank you.

(Ms. Madelene Sachithananthan): Well, although I think that not a lot of people who have an e-mail address are involved in e-commerce, there are a lot of non-commercial reasons for having an e-mail address. And even if it is an individual and you think that is a fun name, I think you should be entitled to keep that fun name. But, I do agree that a reasonable period within which the registration authority could contact the registrant would be a period of three months. Now, of course the contact can be through the home address, the (lander) address or the telephone number or the fax and of course the e-mail itself. If within three months there is no reply, it maybe reasonable that the e-mail or the address has been inactive for this time to cancel it. But, what I think is more important to try and protect legitimate interests of the registrant is to give them maybe a further period, (I am just picking up these figures arbitrarily) six or nine months to challenge the cancellation. I can foresee this could lead to a lot of administrative work on the part of the registration authority, but these could be exceptional cases and after all registration authorities at least here, they collect what $75.00 perhaps they could take on some administrative functions which are not happening on a very frequent basis I would imagine. And one of the ways that you could filter out maybe frivolous or vexatious cancellation requests is to make them in writing. That could help to weed out. When you make it very easy for people to make the request online that could lead to more frivolous cases.

(Mr. Harald Alvestrand): The last lady actually made a very important point which is that there should be a difference between the suspension of a domain name and a release of the domain name for other registrants. In many cases the absolutely quickest way to contact the domain name holder is to suspend his domain. I am reminded of once case of the domain name registration authority in Norway where they had sent e-mail, physical mail, fax and tried even phoning the guy and all the registration details were wrong. So, they cancelled his domain and he was on the phone within twenty-four hours. I think he actually should have his domain name back. Well, he didn't because of a certain technical point there. But in general I think that we should state a principle that once a domain name gets suspended for unreliable contact details there should be a period of time in which the person can get it back and nobody else should get it within perhaps three months.

(Mr. David Muls): So, just to summarize, the suggestion is that if the contact details are unreliable there should be a minimum period to make that determination of x number of weeks or months and perhaps instead of the drastic approach to immediately cancel, there should be a first period of suspension which will probably prompt the person, if he is interested, to get in touch with the registration authority and then possibly then cancel it depending on what the various views are, which would be a refinement on what is currently proposed. We do have to move on, so I would like to take one more comment on this particular point. So, there are more comments, so I guess the issue which is an important one raises comments and I will keep to it for the time being. Please sir.

(end of tape)

(Mr..........................): (New tape begins in the middle of a sentence) ......................it is not feasible, especially here in Singapore. We still have a lot of domains that are behind UECP connections which just do not allow websites. And I think there should not be requirements to use a domain name in this specific way with this specific protocol. We don't even know what additional protocols will be coming up in the ITF over the next five years, and just forcing everyone to provide a specific service is not really useful. In addition, I do not think that an e-mail address is a good way of contacting someone whose other contact addresses are all wrong. We need something out of band. If you are talking about the Internet, if you can't reach someone over the Internet we need something outside the Internet to contact someone. The postal system is fairly good at this. One reason why people might not be available via e-mail or why someone does not read his e-mail is that if his provider has been spam blocked by one of these big spam block sites. So, it is not even the person's fault that no e-mail can reach the person who complained or that he cannot read anything because his provider has been spam blocked and he is basically innocent at that moment. What I think should be provided is an essential list, like a publication of uncontactable domains either by the registration authority or by another central authority that can be sub-contracted by the registration authorities where all these domains are listed saying we couldn't reach you, here is the date when we tried first, please contact us or you will lose your domain. Okay, that is all.

(Mr. Chandru Ganesh, Research Student, Faculty of Law, National University of Singapore): My name is Chandru Ganesh. I am a research student in the Faculty of Law, National University of Singapore. With regard to the solution that a domain name could be suspended, I would like to say that for example there is a genuine reason if a person is not able really to get the information then suspending would probably be an extreme measure. It is a basic principle of natural justice that no one should be condemned unheard. So, a person should be given an opportunity and in case a person is not available on e-mail or he is not able to check his mail when he is out of his place, it is very important that a public notice is given, either as suggested in a publication. For example, if ICANN is going to have a publication every month or once in fifteen days there can be a notice. Like for example we to set somebody, x party in a court proceeding, a public notice is the last resort before which a court sets a particular party, x party. So, it could either be in a publication of ICANN or it could be in a local newspaper where the person is residing, the address she has given. Because it is very important that a person is not denied of his rights of natural justice. Thank you.

(Mr. Dona Kumariks ?): My name is Dona Kumariks. I would like to share my experience with submission of domain names. I have done quite a few and found that we have to submit both the primary applicant as well as the secondary applicant. So, for example, for my company's ..................... these two independent applicant they have to cross ..................... And this application of $75.00 is a yearly basis so we have to renew every year and we are notified as we approach the year. So, this is a way that we check through all the proper documents whether the person still remains within a company. So, we must have both the primary as well as the secondary applicant.

(Mr...................): I would like to offer a suggestion for consideration. Perhaps at the point of trying to register, the registration authority could impose the obligation that the registrant be responsible to ensure that the contact particulars are valid. And at any point in time if any of this information is not valid then the registrant will be obliged to keep it updated and in any point if it is not updated and if the registering authority attempts to contact and is unable, then any action has a valid basis.

(Mr. David Muls): Thank you. This is I think the approach taken in the Report. I think the question is what do you do about persons who in good faith did not update that information. This is really the tricky question. But I believe there was another gentleman who wanted to.

(Mr. Tan Ken Hwee, Legal Officer, Attorney-General's Chambers): Good morning. My name is Tan Ken Hwee and I speak today in my personal capacity and as Webmaster for a society in Singapore. I have three points to make. Firstly, that if you want to register a domain name and you want to keep a domain name that must necessarily come with some responsibility. And part of that responsibility is to make sure that you remain contactable. So, whilst Ken on the Panel made a rather compelling scenario of a daughter being away in Europe for a couple of months, my reply to that is if you want to keep a domain name you have to remain contactable within reason. So, if you remain uncontactable because you are holidaying in the Himalayas for six months then tough! If somebody comes along with a reason why that domain name should be vacated then maybe it should be suspended after going through a reasonable process of investigation which leads to my second point. If you do want to do a suspension, the procedures and the checks that must be carried out must be very well documented and must be very thorough as well. Apart from checking the contact information that might be listed in the registrants application, I will suggest that the authority should also check the website that might be mounted on the basis of that domain name and check whether there is any activity on the website, check for e-mail contact information on that website and on that basis try and contact whoever is behind that website. You know, hey! somebody has a problem with your domain name please contact us it is urgent, we can't get you through the information that is provided to us, we are getting this e-mail address from your website and please contact us on an urgent basis. And of course as a next step you could also go and check with the website host, because somebody has to be paying the website host in order to keep the website up. So, it is like okay from this I can trace where the website host is and I ask the website host, you have a customer using your servers and we have a problem with the domain name he is using, please help us contact your customer to let us get in touch with him. And finally, you might also want to check and see is the website being updated while your trying your darndest to contact him. Because if the website is being updated and your spending three months here trying to contact the guy, but all the time his website is being contacted then that would be a factor that shows bad faith. He doesn't really want to be contacted, he wants to carry on work. So, all these should form a complex series of factors which should be taken into consideration before you suspend a domain name. And my last point relates to this thing about e-mail addresses. I do have some sympathy for those who say that there may be genuine problems why you do not read your e-mail. I just did a quick check and I think I have about twelve e-mail addresses to my name and you know try as I may I don't really check all of them as regularly as I would like to. So, there has to be some lactitude there, but it is a complex balance but I think that something can be worked out that is acceptable. Thank you.

(Mr. David Muls): Just one more comment. A final comment on this point and then we move to another question relating to contact details.

(Mr..................): Yes, just to this last suggestion of checking the website and so on and so on. This is going to impose a very big cost on the registration authorities just to make sure that this registrant is contactable. And even seeing whether the website changes over a few days and so on. While this is all nice and a good idea, I think it is going to make the domain name very much unaffordable to most people because just providing normal registration services is already expensive. Providing the name servers and the infrastructure and everything and this is going to go over the top. We will either have to find a way that either the registrant who is not contactable can be charged for this cost that is attached to finding him, or that the person who wants to find him has to bear this cost. And I don't see how we can do either in a fair manner. So, I think we just have to forebeg on the due diligence, keep the data updated where it is supposed to be registered and if you can't be contacted that is just your bad luck. And you have three contacts usually registered with the domain name. Administration and billing and technical contact and one of them should know where you are. If all of those contact data are outdated or disclaim any knowledge of you that is really just your bad luck, your due diligence hasn't been followed.

(Mr. David Muls): Thank you. Maybe we can just summarize to see whether this appropriately summarizes the views. There seems to be a fair amount of agreement on the point that if the contact details are unreliable, there should be some consequences flowing from that. Perhaps not immediately a cancellation but first a suspension and then a cancellation. There seems to be also agreement in the room that there should be a duty on the part of the domain name registrant to keep these contact details as fresh as reasonably possible and a duty on the third party who complains about them to make a reasonable degree of efforts to check every single contact detail that has been provided. That it would be useful for the registration authority to do an independent verification, but that such verification should not be so heavy as to become an undue burden on the part of the registration authority. I think in some way there is quite a fair amount of agreement on these points. There is some question about how much time the registrant should have to respond. I think this is a fair point, but let us not forget that in normal litigation procedures, in normal court procedures you also need to contact another person and that other person is also obviously sometimes away. So, these things do exist and I think there are ways of handling that. But as a general measure I sense unless somebody disagrees that on the basic principles everybody seems to be in the same direction on this point.

Let me get to a last point with regard to contact details that Ken has raised, which we believe is a very important one, a very fundamental one, and the point is the following. In the Report at the very end we float the idea of the possibility of introducing non-commercial gTLDs, where people would be able to engage in all sorts of activities that has nothing to do with commerce and that in principle at least should not be a zone that would interfere with trademarks etc, etc, because there is basically no commerce there. And the suggestion has been made that it would be certainly worth considering that in such non-commercial domains there should not be an obligation to provide contact details. Some commentators have suggested that while this is a useful, constructive principle that the concern might be that such non-commercial domains are used as safe havens for all kinds of illegitimate activity for instance distribution of illegal copies, of software etc, etc, and that at least some protection measures should also be available in such domains. Can I ask the audience their views on this question. First of all, the principle of non-commercial domains and the more loose approach to contact details. And secondly, would that not be opening the door for abuse? Any comments on this?

(Mr....................): Up-front it seems very nice to have non-commercial TLDs where a trademark will not have any say or any way of stopping someone registering this. Although, I have my doubts that this will in the long-term work because international property rights do not stop at a certain door just because someone said this is going to be non-commercial. If someone goes and infringes your intellectual property right by spoofing you, or bad mouthing you, even though he is doing it for free, non-commercially we will end up in the same thing. Should we get to this non-commercial TLDs, which I have not really made my mind up whether its nice or not, I don't think that there should be a loosening of the registration requirements. Because there definitely will be going to be disputes over the use of these domain names whether its illegal activities and so on. If there is no contact data available for the registrant of this domain name then this whole burden will fall on to the ISPs who are running the domain name servers and so on and they will feel the whole burden of running these domains. And they will see the lawyers descend on them and charges stop running this domain name and will be just shifting the whole burden to the ISPs who will immediately stop serving these domains because we cannot support this. As an ISP I can immediately say if this danger looms there we will just stop serving these domain names, because we cannot take responsibility for this domain. So, I think just providing a safe haven with registration requirements is a very bad idea.

(Mr. David Muls): This is an interesting reaction from somebody who is not typically trademark community, so it would be very useful I think for us to have, because this is an idea that for WIPO is a pretty delicate thing to suggest. Obviously the trademark community is not necessarily too keen on such a proposal. So, it would be very interesting for us to have some more reactions than the one we just had.

(Mr. Chang, Legal I Design?): My name is Chang from Legal I Design. For example, Internet itself is a commercial company. There was a register before Internet came into being. So, now the Internet becomes a generic name. Now, the example would be if I found a new name non-commercial and I say www.new name. And it is for non-profit and someone saw the name and decides that it is a good name for his product, launched a product using new name and then trademark it and then sue me for being there. Or, you have to decide who comes in first. So, how do you differentiate by the date of registration or other ways in which I can be protected in law? Thank you.

(Mr. David Muls): I think the point to summarize is well taken. It follows on the first point that in theory it might be easy to say non-commercial, commercial, but in practice it may become a quagmire. For instance, if there is a website that effectively distributes, although this is not a domain name question, illegal copies of software for free is it commercial? Probably not strictly speaking. But obviously there is still some problem there, so it is interesting to hear that people find that the distinction maybe more theoretical than practical.

(Mr. Ken Fockler): I wasn't sure that we were going to move right into this whole topic and we may touch upon it if we get to the final end. But I would just point out that in perhaps in every hearing that I have been at, at some point in time there has been this discussion and that has not necessarily been commercial versus non-commercial, that is one possibility. But it could be differentiated within commercial and in many as they say in just about every hearing there has been one or two very serious proposals that there should be something like a .xxx where the pornographic sites and there are many of them. And some people say that there isn't and that is where they are congregated or try to be. And as I say some people have said that's good, others have said no or any other kind of differentiation. Some people have even tried to suggest that .TM be used for trademark and there are lots of wild and interesting ideas out there, just stimulation.

(Mr. David Muls): Indeed this is a question that we will get to at the end of the day. About the need and usefulness of differentiating various top-level domains according to the content. Are there any other feelings about loosening contact detail requirements for domains that would not be typically commercial or is that more or less what people feel about it? I think that is about it. We have a coffee break scheduled in principle five minutes. What I would suggest to do, because there are still a few issues with regard to dispute prevention that I think will solicit less comments than contact details, but I think it would be worthwhile just going through them and if it takes some more time, we break somewhere there, let's say let's go for another ten minutes. But if people are more or less comfortable with the recommendations as they have been proposed maybe we can get through them and then start with dispute resolution after the coffee break.

The next issue in relation to dispute prevention is the use requirement. Maybe we can be quicker on this because most people seem to agree. In the two year debate about how to deal with the domain name problems, at one point many commentators felt that there should be an obligation imposed on domain name registrants to actually use the domain name. And in some earlier proposals this was considered a useful approach and the contract will provide that the domain name must be used. And if it is not used that may lead to the cancellation of the domain name. However, since then many commentators have made a suggestion that this is also nice in theory, but in practice it would be very difficult on the one hand to define what use is and on the other hand to verify it. And we have come to the point where we have in our recommendations suggested that maybe this is not such a practical useful approach. May I put it to the floor to see what the views are. Do you think it would be useful to impose a use requirement or do you think that that is not particularly helpful in this context and that should not really play any significant role? Anybody in favor of imposing a use requirement?

(Ms. Laina Greene): I wanted to just actually ask for clarification here on what you meant by usage. You meant in terms of the usage of actually using your domain name to have an e-mail address on a website? Or are you talking about usage in terms of what the contents of your website are about?

(Mr. David Muls): Well, this is obviously a, this is exactly the point that we felt in the recommendations that it is not easy to determine what use is. And we even went so far as to say that sometimes there may be a legitimate non-use. For example a company plans to launch a new product and prior to the launch of the product they just want to make sure that they have the domain name and they register it and then three months later the product is launched. Obviously, it would not be particularly smart in such circumstances to try to cancel the domain name if there is a reasonable perspective that the product will actually be launched. So, I don't have any answer to your question. This is precisely one of the reasons why we hesitated to actually impose a use requirement, because in practice it may not be particularly useful so to speak.

(Mr. Elvin Khan): In principle I feel that there should be some use requirement, the practicality of verifying or ascertaining the use is a separate issue. Like trademark registration and even company registration if the name or the mark is not in use, then there should be some form of mechanism whereby the registration can be removed or canceled. There may be registration of domain names that are not used, but could be kept aside for other purposes. For example, in the recent 'One In A Million Case' in the U.K. where a person registered domain names of famous Harrods, Marks & Spencers. He wasn't using them, yet the court held that the fact that you are not Mark & Spencer but you registered Mark & Spencer.com it must have been for some purpose and he was held liable at the end of the day. So, the point here is that there may be entities or persons who may wish to register domain names for other purposes and not yet use them. So, there must be some procedure to remove such registrations in the event of non-use. Whatever the procedure is, whatever the verification is that would be a separate issue. But in principle I think there should be some kind of mechanism. Thank you.

(Mr. David Muls): Any other views on this. By the way just to comment on the 'One In A Million Case', I think one of the uses that was made is selling them.

(Mr...................): As nice as it would be to actually check use of a domain name and required, with all the different protocols and technologies out there on the Internet I don't see how we can require someone to make a certain use of a domain name. And the only criterion that I can often think of that denotes use of a domain name is having working name servers for this domain which is the absolute bare minimum, which you will also have if you sell it. So, I think there is no valid way to require a working mail server. You wouldn't even know whether this is for this domain or for sub-domains and whatever where to check whether the name server is actually valid. Web servers, lots of people like I earlier said using the UECP there is no way of putting the web server behind the UECP network. There are a lot of other different protocols that can be used or some company may not want to take part in the normal Internet, meaning e-mail, web commerce and all that kind of thing, but using the Internet as a virtual private network for their own purposes and not be reachable from the normal Internet other than being tunneled via the Internet for their own private network. This is abuse of a domain name and of the network. So, I don't think that a part of showing working name servers there is any other way we can register it or we can determine use. But, I would make this one determination that if someone does not even bother to set up name servers that are working, so if you register the domain name in three months later or one month later it still does not have name servers working then the domain name should be taken away.

(Mr. David Muls): I think this is exactly what we have proposed in the Report. The only thing that we would propose to be checked in terms of views is the operational status of the primary and the secondary name server and that's it basically. Let me put to the audience another scenario which may shed some light on this. Assume you are Coca-Cola and you are concerned about obviously the value of your brand, it is worth 33 billion dollars, and you know that there are many ccTLDs, some of which have loose registration practices. So, to protect your brand which you feel is obviously well-known and famous, you register the domain names in various ccTLDs. Legitimately speaking I think arguably you have a good case for saying that the brand is so well known that it should have a high level of protection, so you register the domain name Coca-Cola in various ccTLDs, but you don't really use it. There is no real use on the one hand, but on the other hand you could say there is a legitimate purpose for doing so.

(Ms. Laina Greene): I think David your last example is a perfect example to show the fact that there are two sides to the story always. And while as trademark lawyers out there you are concerned about abuse, I think we should not get carried away with the concern of abuse to create a structure or things that can be used abusively on either side. And your example would be a legitimate case. I think ultimately you would have to go back to what is the purpose. What is the purpose of your whole investigation. If your investigation is to show mala fide, that there is in fact abuse, cyberpiracy involved, then perhaps usage would be one of several criteria, then it works if not you can lead to it. And the other thing is, I just want to leave you with this before you go off to your coffee break, keep in mind that this whole process is about balancing of interests. Because we should also, yes we recognize that there are many trademark interests in the issue of domain names. But domain names have existed for a long time for other purposes as well and there may be people with very legitimate interests on the other side. Even among the trademark holders you have the large trademark holders and the small trademark holders, so differing views. You have people with legitimate interests of personal names, company names etc. The whole exercise I think of this regional consultations is to try to look at the balancing of interests and then come out with a procedure that is as fair as possible, but at the same time it is not open to abuse by either party.

(Mr. David Muls): Absolutely. One more comment on this point and then I suggest we break for coffee, after which we have two sub-questions with regard to dispute prevention and we move to the next big chapter, dispute resolution.

(Mr. Desmond Eve, Association for Telecom Equipment Supplies in Singapore): This is Desmond Eve from the Association for Telecom Equipment Supplies in Singapore. I just want to add on to Laina's point in that, yes there are valid basis for which people will register names and not use them. I think in considering views on what has been proposed and recognizing that what has been proposed may not be too practical to implement are there alternatives that have been considered? Because I think we need to look at what other procedures we can apply to make sure that we take better care of those that may have valid reasons and also protect so there won't be abuse. So, we need to look at the alternatives as we consider whether or not what has been proposed is acceptable.

(Mr. David Muls): To pick up on the point I think with regard to the use we in the Interim Report we suggest very much what Laina was referring to. Instead of trying to impose many conditions at the front end, we try to say let us not get carried away. A lot of the activity, obviously most of the activity is perfectly legitimate, but let's have some mechanism to handle the minority of cases where abuse is prevalent. And the thought was, when there is actually a dispute about a domain name to take into account the use or the non-use of the particular domain name to make a determination whether the domain name should be canceled or suspended. So, the use would become one criterion in dispute resolution rather than a hard up-front condition for registration. And I personally believe and I think that's the spirit of the document that, that permits a fair balancing of the interests than an up-front black and white rule. So, if you permit I would suggest that we break for coffee and we have a lot of work to do and I am happy that there are many comments. I would like to reconvene at twenty past eleven if that is reasonable. That's short, but I think we have to do it. Okay, thank you very much.

(coffee break)

(Mr. David Muls): (Begins in the middle of a sentence)............... More items in dispute prevention. There are two remaining items with regard to dispute prevention. On the one hand, the payment of the registration fees and on the other, the waiting period. I suggest that we go over them relatively quickly. I will briefly summarize what the position is as reflected in the Report. Starting from paragraph 65 and going until paragraph 75, 65 to 75. First, with regard to the registration fees. In the debate that has been going on for two to three years regarding domain names and intellectual property rights. A large number of commentators have observed that part of the problems in particular with regard to the warehousing of names, that is to say registering names in bulk and thereby blocking other persons who may have an interest or a right in the name from registering those names. Many commentators have made the point that such activities are stimulated by the fact that the registration authorities do not make the registration of the domain name dependent on the payment of a fee. And as a result of that many commentators have suggested that the activation of a domain name should be subject to the payment of the fee as a condition. In thinking about this we felt that, that is again a good principle, but it may not be all that easy to implement in practice because the way the business is conducted there might be an intermediary who actually pays the fee on behalf of the domain name registrant, and then collects the fee from the registrant at a later stage, perhaps as an overall package of services. So, we felt that it is not necessarily from an operational point of view an obvious thing to determine by the registration authority when exactly the fee has gone out of the pocket of the registrant. So, what we suggested in the Report is to agree on the principle and to suggest to include that principle in the registration agreement. But, we raised some questions as how this could practically be enforced. That is one of the two points that we still have to discuss. And the second sub-point is the question of waiting period and here we can also be relatively brief. In the initial stages of thinking about domain names and trademarks particularly one to two years ago, many suggestions were made that a domain name should only become active after an initial waiting period. This was in part inspired by a trademark practice where there is a certain period where third parties may oppose the request for registration. While initially that proposal received a large support particularly from the trademark community, I think we have come some way since then, mainly realizing that domain names are used for many, many purposes other than trademarks and that it would impose that type of requirement on the entire community that use of the domain name may be unduly burdensome because in many instances there is just no problem. It is only in a minority of cases that a problem would arise. So, in the Interim Report what we have proposed is, we have said that we do not feel that an up-front waiting period would be an inappropriate procedure, but we suggested that the domain name could be activated relatively quickly at the initial stages, but there would be a certain period after that where a third party could lodge a complaint. And then, on the basis of that complaint a determination would be made to suspend the domain name. So, we have reversed the situation. Instead of having an up-front waiting period for everyone up-front we would suggest that the domain name can be activated and if a third party has a complaint at that stage then there would be a possibility of suspension when all the facts and circumstances can be taken into account. Now, in the interest of time because we did feel and (Pam ?) can correct me if I am wrong, we did feel at the end of the first series of consultations that most people tended to agree on those two approaches. On the one hand, the first approach is to stick to the principle of activating a domain name upon condition of payment, but realizing that, that may be practically difficult to verify. And the second point let's not go for a waiting period, but let's have the possibility of suspension in the case of objections. And as a general matter I would like to have some feedback from the audience whether those approaches in relation to those questions are reasonable.

(Mr. Ahmad, Surveyor): My name is Ahmad, I am a surveyor and I am lost again. So, what is the relation between domain fee and intellectual property? That is question number one. And question number two is, in my understanding at least it was in the TLD .ID that the fee was for surface charge, not the right to use the domain which is not appropriate according to 50/91 anyway. Thank you.

(Mr. David Muls): Yes, I think to clarify the point it is a matter of practicality really, it is a practical point. We have observed that some people a large minority but they exist have registered a high number of domain names sometimes hundreds speculating on their value for the business community. And as a simple practical matter the fact that they were not required to pay for those domain names made it possible for them to register a whole number of them. Because if they effectively had to pay $17.00 per domain name, and they had registered a hundred, they would have had to have $7,000 to pay for them. So, as a practical matter, the relationship between IP and the domain name fee is the following, because no fee was required it gave a larger opportunity for abuse of practices. That is the basic point and whether that fee is then for the domain name itself or for the services, use from that perspective is not I would say a primary consideration. It is a pure practicality. If you are forced to pay it is less likely that you are going to spend $10,000 registering domain names for speculative purposes than if you are not required to pay.

(Ms. Laina Greene): I have a clarifying question. First of all I want to say that if it is in terms of a registration fee that's already been applied, I think this provision came up because of the practices of Internic and as you said that kind of allowed for a lot of abusive hoarding of domain names. I have got no problems with that. But I have a clarifying question, what if a registrar has decided that they want to give away domain names for free and they are uniformly applying it to all applicants. Would this recommendation have the effect of now saying that all registrars have to charge a registration fee?

(Mr. David Muls): No, if you look at the start of the Report, it says explicitly that the recommendations would only apply to domain names that are sold. So, it would fall beyond the scope of the recommendation. So, obviously there would be, this is in line with one of the principles that I mentioned in the beginning, the last thing we want to do is interfere with business models that maybe created on the Net.

(Ms. Laina Greene): Again a follow-up question. Are you therefore saying that the entire Report only applies to domain names that are sold. Because if that is the case you couldn't actually also promote people having safe havens. So, where is the balance there? Is it only with respect to this purpose of this provision on registration fee or the whole Report?

(Mr. David Muls): As I said now it is the whole Report. One thing maybe to clarify on that point is if the registrar itself had to pay for the domain name from another instance that may have an influence on that question.

(Ms. Laina Greene): So, it could be proposing the ............ charges for the ( the voice fades here and she is not clear).

(Mr. David Muls): The basic idea is that the recommendations would apply to domain names which at one point in the chain there would be a charge for them. Is there substantial agreement on the question that waiting periods would not be appropriate. I think most people would agree with that and there seems to be also a consensus that it would be useful to, at least in principle require the payment of a fee for those domain names that are supposed to be paid for, but there may be some practical difficulties in that respect.

(Mr. Mathias Kerber): Just to pick up on Laina's point. I didn't read the whole RFC and just now when she said that you clarify that this whole RFC or this whole recommendations only applies to domains that have been sold. I think I would have to voice my reservation to that, I think I am going to make that more clear in a written submission in an e-mail. I think there needs to be more differentiation to the different parts where they apply. Because I can't agree that this whole thing only applies to domains that are sold at one point at the chain. So, there must be a very much clear differentiation in this. So, as it stands I can't really agree that this condition is there for the whole RFC.

(Mr. Harald Alvestrand): I think actually the formulation that came out from me so I should probably defend it. The reason for saying this is that if you were reading one of the previous versions of the report with the devil's glasses on you, you could claim that this governed also how domains are going to managed within the company or within my personal domain which would be wholly unreasonable. And we were tossing about, about four different definitions that would try to call this to differentiate the domains. We wanted to see this applicable to and the domain names we did not want to see them applicable to. And the one that seemed to match most closely to the differentiate we wanted was the bought and sold versus someone’s managing them for other purposes. But if you have a better way of putting it I would be thankful.

(Mr. Mathias Kerber): I will try and think of something. But the obvious comment is I think there should be different scopes to the different parts of this document rather than applying this to be sold to the whole document as one. So, I think specifically this payment part should be applied to all domains not that they are sold at some point of time, whereas other parts may not apply to certain other parts. So, rather than putting the whole RFC under one scope there should be a bit of differentiation. Maybe defining different classes up-front and then saying this applies to this. As we already have open TLDs, gTLDs, ccTLDs differentiated at some point in this RFC, there must be a bit more differentiation and definition there than for the different parts so that it becomes clearer.

(Mr. David Muls): I think the message is that this question of bought and sold at least should be clarified in the next stage and I think that is probably correct so we will work on that. Apart from that I think we may be ready to move to the next large chapter which is an interesting one on dispute resolution. This starts at page 33 of the Report and if you permit me I would like to give some brief background information about the proposals that are contained in there and then we can move to the discussion.

The real question is the following. Would it be useful to have any dispute resolution procedures put in place for domain name disputes in addition to regular court proceedings. Or put differently, would regular court litigation not be enough to deal with the problem. On the basis of the consultation process and the comments we have received we believe that court litigation as such is insufficient for the following main reasons. First of all the Internet, as you all know and everybody says, is a global network. And it is quite burdensome if infringements take place on the Internet to use solely court procedures. Because depending on where the infringing activity takes place a procedure will have to be started in various courts around the world. So, it puts quite a heavy burden on the person who wants to defend his rights and have to go locally to pursue the problem. And this is particularly true if one compares the ease with which an infringement can occur. It is relatively a trivial matter for someone to register a domain name that infringes a trademark because of the registration procedures and because the fees are relatively low. It is a much more heavy matter to then try to knock that particular registration out. Particularly because trademark holders and in particular those that own famous and well-known marks are the subject of quite a high volume of such abusive practices. So, that is one consideration. The second consideration is as in any international litigation context there is a risk of conflicting court determination. And then the question arises which one would you have to apply. Thirdly, and practically speaking most importantly court proceedings are expensive. It costs a lot of money to pursue one's rights in courts throughout the (end of tape)..................agents of the world. And again if one compares that to the relative low cost of registering domain names it puts a heavy burden on persons who wish to defend their rights on the Internet. Maybe I should add this comment. Under trademark law a trademark owner is obliged to pursue his rights in the trademark and to defend his rights in the trademark. If he doesn't do it, at one point under most trademark laws that is seen as a reason, let's say that the trademark may simply disappear if the rights are not pursued. So, one cannot too easily say well they should just leave it because it is a small problem, because with the accumulation of time and the instances of problems it would affect the value of the trademark. And again, for many large companies one of their most important assets are trademarks. It is sometimes more important than the entire value of their physical assets. For instance, just to give you an idea, the value of Marlboro is estimated at 40 billion dollars, the value of Coca-Cola at 33 billion dollars. So, I understand the people not coming from the trademark community say well these large companies they have so much of money and what is really the problem. It is a very important asset for them and many spend a lot of resources defending those rights. So, the basic idea and certainly in the trademark community there is large support for that. There should be some alternative procedure that at least should allow relatively easily to knock out clearly abusive practices. I think that is the minimum that can be stated. But, very clearly the trademark community does not wish that alternative procedure to replace court litigations. So, it would be an additional tool but it would not be an exclusive tool. Concretely speaking that means if a third party has a problem with a domain name registration of a particular domain name and has been able to get in touch with the domain name holder, that party would have the option either to go to court or to use an alternative procedure to either suspend, cancel or get the transfer of the domain name. So, the alternative dispute resolution procedure would be in addition to court litigation.

If you allow me to highlight to you the other main considerations that have come through in the comments period about what the essential characteristics of such other procedures should be. And they are outlined in paragraph 122 of the Report at page 37. It is important that the procedure is expeditious and at relatively low cost. The second point a very important one, is that the procedure should respect not only the rights of trademark owners and intellectual property owners, but also the legitimate rights of other constituencies that are active on the Internet. It is important to make this point because some of the alternative dispute resolution procedures that currently exist, for instance the NSI dispute resolution policy has been viewed as being overly skewed towards trademark holders. Because you basically, to make a very long story short, you basically win if you can produce a trademark certificate. But the other person may not be able to produce a trademark certificate, but still have a legitimate interest in the name, for instance if it is his personal name. For instance, if he is using a variation of that name to express legitimate views about the quality of a product. But under the NSI policy it is much more likely that such a person would lose. So, there is a little bit of an imbalance. So, that is why in the Report we have tried to come up with a system that would take more to account of other rights also than trademark rights.

The third characteristic which is important, is that the system should be uniform or at least consistent throughout the gTLDs. That is to say that there should be a minimum of consistency between the type of procedures that are put in place in the various gTLDs. So, that trademark owners and others who may rely on the procedure do not have to reinvent the wheel each time they are faced with the particular domain name. Let's assume there has been testimony by a company, Porsche, that had 170 what they considered abusive registrations of their domain name. And if those 170 are all registered in various gTLDs, and each administrator of the gTLD has its own dispute resolution policy with each time different procedures, it makes it very complicated to enforce your rights. So, what was desired is a minimum of consistency in approach. As I said before the procedures should not preclude any of the parties from going to court, either before the procedure, during the procedure or after the procedure. Which means that if a person looses under this alternative procedure, he would still have the ability to go to court to get a different result. And we have clearly stated in the report which is an important point from a legal perspective, that court decisions would override the result coming out of the alternative dispute resolution procedure. So, the alternative dispute resolution procedure is very much a supplement and not a replacement of court procedures. Obviously the dispute resolution procedure, because it would be administrative in nature would not have any binding effect on the national courts or trademark offices, so, it would have no precedential effect. The remedies should be restricted to certain types of remedies to make it simple and not to force the defendant to incur significant, let's say, so that no obligation can be imposed on the defendant to pay significant damages. Damages have been excluded from the procedure. The only available remedies would be the suspension, the cancellation or the transfer of the domain name. So, it is really restricted to the status of the domain name.

And lastly, the registration authorities should be as removed from the procedure as possible. They would not themselves and it is not healthy we believe for registration authorities themselves to resolve disputes. The only juncture at which they would really come into play is when the conflict has been decided upon, and then the registration authority would implement the change of status in the domain name. For instance, the cancellation into their databases. So, there would be a direct enforcement mechanism from the ADR procedure to the registration authority. But apart from that the registration authority would not really play an active role in the procedure. Those are the main points. Are there any observations about these fundamental characteristics? We will get back to them in the course of the discussion, but we can wait until we get into the meat of the thing but that was to give you a basic idea.

(Mr. Mathias Kerber): Just a very quick question for clarification. You just mentioned in 122.3, all gTLDs, whereas in the text it says all open TLDs. Could I ask for clarification on how you define open TLDs other than gTLDs?

(Mr. David Muls): Yes, this comes back to what I said in the very initial part of the day. Formally, the recommendations are addressed for gTLDs. This is the main focus of the recommendations. However, as defined in the report an open TLD could be a ccTLD that allows known residents to register in the ccTLD. For instance in the U.K. basically any company, even if it has no presence in the U.K., can register in that ccTLD. Because that is the case, in some ways functionally that ccTLD in some ways has characteristics that are similar to gTLDs because it is open for everybody in the world. That being the case, we have suggested in the report that it is worthwhile for the administrators of these ccTLDs to look at the recommendations and to see whether they find them useful for their own process. It is not directed at the ccTLDs and there is no, I believe, no possibility for ICANN, although I don't want to speak on behalf of ICANN, but I think the focus of their activity will be on the gTLDs more than the ccTLDs certainly in the initial period. So, I hope this clarifies the point.

(Mr. Mathias Kerber): Okay, I can think of several other conditions that would make a TLD an open or closed rather than being residing in a certain country or something. So, I think this definition must be a bit more clearer. I would also question whether ICANN is only geared towards gTLD as it is going to be the root owning organization. So, a clear statement out of WIPO that ccTLDs should not be in this would be from my personal point of view very welcome. Although, I think that lots of ccTLDs would welcome the general recommendations and adopt them. I think it should be on a purely voluntary basis and should be put into the recommendations that ccTLDs can accept them on a purely voluntary basis. Again on this one I am not speaking for SGNIC, but this is my personal view.

(Mr. David Muls): I think this is entirely the understanding of WIPO. There is no hint of suggestion that it would be anything else than a voluntary basis. We do feel that some of these proposals are useful and I think we believe that it would be worthwhile for certainly certain ccTLDs. As you know certain ccTLDs are in the very initial stages and really don't have any significant procedures and we believe that it would be a good source of inspiration and that is basically the idea. On the question of ccTLDs, gTLDs and the ICANN authority I would like to state for the record that we do not wish, nor can we, to express any opinion about that, because it is not our mandate and we don't really know technically enough about the situation to have any views on that. But I do know and I recognize that this is a discussion currently ongoing.

(Ms. Laina Greene): David, while I agree with you that we are not making recommendations we are just purely giving voluntary recommendations so to speak. In reality I think ICANN to a large extent will accept this because this is going to be through a process of regional consultations. We don't know, ICANN may end up looking at ccTLDs. You mentioned open TLDs here, there is a definition on page 3 that was brought to my attention which says no restrictions. It is a very difficult terminology to say what is open and what is not. What if I put a restriction that you have to be contactable da, da, da, da. There is a restriction. What if I say you need to have a telephone number, you have to have a mother in that country, what is the definition of an open ccTLD? Now the main point I took the mike was very simple, was a fact of clarification. This whole process was initiated out of the White Paper. The reason why we are having this WIPO regional consultation was based on the White Paper. The White Paper very, very explicitly states that this process is supposed to develop recommendations for a uniform approach to resolving trademark domain name disputes involving cyberpiracy very clearly, as opposed to conflicts between trademark holders with legitimate competing interests. And yet, the recommendation we are coming at is for any disputes and I would like for a clarification on that.

(Mr. David Muls): Just as an initial comment. Obviously Laina because you are the Panel of Experts for WIPO, the point is it is entirely true and this is something we will touch upon in the next stages. It is entirely true and it is eminently clear the White Paper suggests that the recommendations should be limited to cyberpiracy however that may be defined. However, I think the view of WIPO is that the White Paper has been the source and the initial trigger for this process, but WIPO as an international organization where 170 Member States are members, does not feel necessarily bound by that particular point. And may I point out that the European Community, the European Union with 15 Member States, the second largest I believe area in the world where domain names or Internet use is prevalent, strongly feels that it shouldn't be restricted to cyberpiracy. So, what we really wanted to do is to open the discussion and we will get to the interim recommendation on this particular point in a second. But I think that probably replies initially to your question.

(Ms. Laina Greene): Would you therefore say that one of the issues that are being discussed is whether to (interruption).

(Mr. David Muls): Oh! absolutely and I think frankly my own personal view, this is not necessarily the position of the entire world. My own personal view is that, that is one of the most difficult questions. So, there is a genuine debate about that, but we just did not want to lock it in from the start.

(Mr. S.D. Wari (?), Attorney-General's Chambers, Singapore): Please can I get some clarification from you. As far as the dispute settlement mechanism that is concerned has the discussion been proceeding on the basis that ultimately we are likely to have one registration authority in the world?

(Mr. David Muls): Sorry.

(Mr. S.D. Wari): Is the discussion on the dispute settlement mechanism under here under recommendations, has it been proceeding on the basis that we are likely to have one registration authority around the world or a number? The reason why I ask because I think even now, as of now there are many important interests actually in many countries which have set up companies and are doing very well in terms of registration of domain names. How all that will play out ultimately when all these are finalized and dealt with on a worldwide basis remains to be seen. So, the question is has the discussion been on the basis that either option may ultimately be followed under dispute settlement mechanism that is being envisaged here.

(Mr. David Muls): I think the answer is yes. Again to come back, it is primarily directed at the gTLDs and there we expect that there will be more than one registration authority in the future. And it is also put up for voluntary consideration by the ccTLDs where there are obviously more than one registration authority. So, I think the answer to your question is yes.

(Mr. Chang): Actually my concern because I am in the identity, branding and naming business. So, say I create a name for a client in the States and he trademarked it in the States with the brand name.com. However, his market is not expanding in the nature of Singapore yet, and a similar company here takes the name, register a domain .com as SG or in Indonesia with trademark and the proceedings within the Indonesian or Singapore company. Now, if company A in the States wants to expand its marketing presence into Singapore or Indonesia or Malaysia, however the domain name .SG is being taken up by another company. Now, where the disputes are concerned is it to the Singapore law or the U.S. law or how are they going to resolve the domain name dispute, because both have rights to the ownership of the name.

(Mr. David Muls): I think that is a very fair question and we will get to that in more detail at a later stage. But, just to quickly give you an initial answer, the recommendations proposed that assuming the complainant would use the alternative dispute resolution procedure that the decision-maker would look at both laws to see what each of the parties is entitled to under both laws. And if they are equally entitled to the name, without wanting to prejudge how any outcome would be, but I think if both parties are equally entitled to the name and that their interests are fairly balanced its not unlikely that the first-come first-served principle would prevail. That would be my personal opinion in a natural outcome of a case like that. But, you are going already further than where we are now which we will have plenty of time to discuss in the later stages. I would like to ask if there is no other observations regarding the guiding principles, we would like to move in the next step on dispute resolution and say I would propose to skip for purposes of the discussion the mediation and arbitration procedure unless there is a specific comment essentially for the following reason. If basically a legal discussion, arbitration has certain legal consequences in terms of excluding the ability of a party to go to court and because of what I had said before, most commentators want to have the option to go to court we came to the conclusion that mediation and arbitration cannot be a mandatory procedure. So, we leave it entirely to the parties to use these procedures only if they are both willing to do so. That being the case, because those procedures which we propose are essentially voluntary and if both parties agree I don't think anybody in the world would have any objections to them. We don't think this is going to be a particularly controversial proposal and I think the discussion will be much more centered on the administrative procedure which we propose to be mandatory. So, if there is anybody in the audience who would like to make some specific comments about the mediation and arbitration procedure I would invite them to do so now, and if there are none we could move immediately to the administrative procedure.

(Mr. Chandru Ganesh): My name is Ganesh and I am from the Faculty of Law, National University of Singapore. Actually I came prepared for a formal presentation with regard to the alternate dispute resolution procedure, but I will just quickly go through the various suggestions which I would like to make. Before I proceed I just thought I would say a small anecdote to ease this situation here and not be monotonous. Three lawyers went to God. The first one was a human rights lawyer, the second one was a constitutional lawyer and the third one was a lawyer who was dealing with Internet disputes. So, the human rights lawyer asks God, 'God when is it that all human rights violations are going to end in this world and all human rights laws are going to be regulated', and God said 'probably in another fifty years or so'. And the human rights lawyer said 'oh! I won't be alive to see this'. Then the constitutional lawyer asks God, probably he is a constitutional lawyer from a country like India where prerogative rites are filed questioning governmental actions. He asked God 'when is it that rites like this will not be filed and everything is organized', and God said 'probably seventy-five years from now'. He said 'oh! probably I won't be alive to see that'. And the lawyer dealing with Internet disputes he asked God, 'God when is it that this Internet is going to be completely regulated by law'. And God said, 'probably I do not know whether I would be there to see it'. So, Internet is basically all pervading and it is found everywhere. And it is because of this that today we are facing a lot of legal obstacles in solving disputes which arise out of the use of Internet. I will just quickly point out the suggestions which I wanted to make today. There has been a detailed discussion about the alternate dispute resolution policy in the Interim Report. With regard to the suggestion at paragraph 122.5 of the Report, the determinations of ADR procedure should not have and cannot have the effect of binding precedent in national courts. It is pointed out that any decision made under an ADR procedure can definitely not be a precedent in national courts because it would not fall under the doctrine of standardizes. So, there is no necessity to feel that it would be a binding precedent. There is a suggestion and it has been elaborated in paragraphs 139 to 201 about this. Recommended administrative dispute resolution procedure which you said would be discussed in detail after this, but I just have one point to make there. Though this seems to be very innovative and seems to fit the nature of disputes that may arise in the domain name system, I think it has to be tested on an experimental basis for sometime before it is given legal sanctity. There is a recommendation made that the parties to a dispute should have the ability to go to the national court after the completion of the administrative procedure. I will just add (para 165), and I think if a party is going to go through an administrative dispute resolution procedure and then have an option to go to court, then I think we will come back to square one because all parties who are going to lose the case in the administrative dispute resolution procedure are definitely going to choose this and it will add to multiplicity of proceedings. There has been a suggestion for online arbitration and there are a lot of legal issues which might arise if arbitration is conducted online. There are a few suggestions which I would like to give on this. Already there have been projects on an experimental basis with regard to alternate dispute resolution, like the Virtual Magistrate, the Internet Arbitrator and the Online Ombudsman’s Office. And WIPO has also come out with an online dispute resolution procedure for the domain name and intellectual property disputes in 1998. The first legal problem which might arise if arbitration is conducted online is the choice of law. If an arbitration is international, it is important to distinguish four separate choice of law issues. The first being the substantive law of the contract. The second the substantive law governing the arbitration agreement. The third the law applicable to the arbitration proceedings which is referred to as lex arbitri. And the fourth, the conflict of law rules applicable to select each of the foregoing laws. If arbitration is conducted online, then probably parties have to discuss all this through electronic mail or what exactly is the choice of law and it has to be decided in the beginning itself.

The second issue which might arise, is with regard to the arbitration agreement and the signature requirement. There has been a suggestion that the parties at option could submit to arbitration. Assuming they submit to arbitration, it is suggested that the domain name applicants could initially just offer arbitration in the beginning and not state other things. And when a particular dispute arises, they can then discuss with the person who is raising a dispute as to the issues as to fix which arbitration center or how to go about the arbitration proceedings itself. So, it can be in two stages, one in the beginning just opting for arbitration because it is done on an optional basis which is an independent declaration made. Something like an independent declaration made under article 36.2 of the Statute of the ICJ which is for the compulsory jurisdiction of the World Court. So, with regard to the signing requirement as such, the New York Convention in 1958 which is the leading convention for the enforcement of awards, clearly states that the agreement has to be in writing and the parties have to sign the agreement. But the Institute of Modern Law, 1985 specifies that an agreement can also be other means of telecommunication which provide a record of agreement. This has been followed in the various national legislations which have adopted the modern law itself. But we have to keep in mind that the New York Convention was sometime in 1958 and the technology at that time was pretty different and the requirement for signature can be met by the digital signatures which have been adopted these days. And one striking example is the Electronic Transactions Act passed by the Republic of Singapore last year in July, which deals specifically with the effect of digital signatures.

The last point which I would like to state is the place of arbitration on award. If ad hoc arbitrations, in distinction to institutional arbitrations, are conducted online, then the question arises as which is the exact place where the arbitration takes place in the real world? Though we could say that it takes place in cyberspace, this is very important in the context of enforcement of an award because only if we know the place where exactly the arbitration has taken place then we could find whether that place is a convention country under the New York Convention. One idea which arises is that the place of arbitration would be determined by the geographical location of the server of the computer which we could probably call lex loci server through which the arbitration takes place. The Institute of Modern Law under article 20 clearly provides that the parties are free to agree on place of arbitration. And further states that arbitral tribunals could meet at any place it considers appropriate. So, probably article 20 of Institute of Modern Law could be interpreted to have online arbitrations and probably parties could meet in cyberspace which is also a place as mentioned in article 20.

Finally, it is important as to where the award is signed. A leading case on this is (Hickscox ?) of the House of Lords in which it was held that though the entire proceedings of arbitration was held in London, the award was signed in Paris and therefore the place of award is Paris. But this gentleman has been criticized to a great extent and it has been overcome by the new 1996 English Arbitration Act. But it is very important as to where the award is signed. So, the question as to whether it is necessary for just one personal meeting, the parties and arbitrators during the passing of an award can be thought about. Or if at least the arbitrators can sign the award on a hard copy it would be easier for purposes of enforcement of the New York Convention.

Finally, I would like to conclude by saying that a fulfledged online arbitration might cause some legal obstacles. If certain procedures in arbitration such as passing of an award can be done in the regular method it would probably be better and useful. A fulfledged international arbitration tribunal with its own rules needs to be established to deal specifically with all kinds of disputes that arise on the Internet including domain names. To evolve a legal system to solve disputes over the Internet would probably be the biggest challenge for the lawmakers in the next millennium. Thanks a lot for giving me this opportunity.

(Mr. David Muls): Thank you very much for obviously a very thorough legal analysis of many of the issues that are raised. I would like to maybe give you a little feedback on some of them, but if you allow me I would like to go relatively quickly because we will get into highly technical legal issues which I don't know how many of the people in the audience are really lawyers and particularly in arbitration. But, if I just come back to some of the points that you said I think it would be interesting to give some feedback. The first point about the back to square one scenario. Indeed the administrative procedure as designed allows the defendant if he is not happy with the result to go to court to get a reversal. And it is true that in theory that may lead to back to square one situations, and we have had that comment from various people. I personally believe that, that's not the case and I think the Report reflects that. Why? And this goes to the question of what type of claims would be covered by the procedure. The procedure works best for clearly abusive cases. And the person who is a clear abuser, I doubt very much once he has lost in the administrative procedure whether he will want to spend the resources to introduce a claim that he knows considering the case law and the .............. that he is very likely to lose. I think as a matter of practice that, that won't happen particularly if we restrict the procedure to clear cases of abuse. However, if we open the procedure to cases of more open approach where parties that where the dispute is much more difficult to handle, where it is not a clear case of abuse I do agree with you that then there is a risk that the defendant who truly believes that his claim or his defense is genuine will go to court. And actually we have made that explicit in paragraph 148 as one of the advantages of reflecting the procedure. 148.5 says, it is less likely that the losing party in cases involving instances of abusive registration would seek afterwards to initiate national court litigation in an attempt to obtain a judgement that would be contrary to and overrule the administrative decision. So, I think your point is well taken, but in the abusive scenario its probably less of a practical problem than one might think.

Now, for the online system. Very small specific comments. Choice of law. I am not so sure whether the choice of law in an online environment is entirely different than from a non-online environment. An online environment is basically the ability to send the documents and the pleadings online. It does not change the substance of the dispute or the procedure. I agree with you that in cases of domain name disputes choice of law issues are very difficult. In any IP cases choice of law issues are very difficult, but I am not sure whether the online character will fundamentally alter the debate.

On the place of arbitration I believe that is a genuine point. And in our rules that we have adapted for the online environment or the arbitration center's rules we have foreseen that at the initial stages of the procedure the arbitrator would determine what the place of arbitration is. Because it is true it is not necessarily clear when nobody meets and so I think that is a genuine point which can be handled through possibly a decision by the arbitrator.

On the signature requirement, as you have rightly pointed out the tendency now is more and more to accept other means of signatures than the physical signature on a piece of paper. It is probably still early days but we believe that with time this will be more and more accepted in the various national laws. And with regard to the New York Convention, we have actually suggested exactly what you said to safeguard the enforceability of the award under the New York Convention we would suggest that the award is actually physically signed by the arbitrator just to make sure and it is a trivial thing to do.

The meeting question is less of an issue because in the administrative procedure or in the arbitration procedure probably it is more likely that there will be a sole arbitrator to keep the costs down. So, the question of meetings would be less of an issue because in most of the cases it would be a sole arbitrator. So, I hope this gives you certain feedback on your presentation.

(Mr. Ken Fockler): I was just going to add something along the same and the way David expressed it was maybe more his view that, that's how it would work out in may of the, and I am not a lawyer though my mother used to accuse me of thinking like one, and I never figured it out whether that was a compliment or not actually. But, in many of the hearings and hearing from either lawyers or many of the large companies that came to several of the hearings and spoke about their situations, they very much also supported and liked this kind of a process and said yes once that abuser and here are the kinds of things we are running into. They may not even show up for the administrative procedure and who knows what's going to go on. But they very much agreed that this was something that was fair, it was balanced as best possible and the abuser, if that is the case loses isn't going to then go to court. So, it was supported more than just by David's side.

(Mr. David Muls): My thoughts are relatively irrelevant.

(Mr. Chandru Ganesh): The last comment by Ken just raised another topic up. You said that the defendant may not even show up for the administrative procedure. First of all I don't know how you don't show up in cyberspace. Secondly, I think it must be clearly stated that if only if both parties agreed to the ADR on this one specific case can it be binding? Because I think if someone just goes to WIPO to start this ADR and the defendant does not like this but also does not think he has to defend himself in court or start court proceedings on his end and does not turn up, this proceeding should not be binding. Then it would be up to the claimant to go to courts to enforce this. So, I think it must be very clearly stated that the decision of the ADR will only be binding if both parties agreed that this arbitration is useful in this specific case.

(Mr. David Muls): Can I ask whether you believe that, that should also apply to the administrative procedure?

(Mr. Chandru Ganesh): Yes

(Mr. David Muls): Then I am grateful for your point because that leads us to the next issue, the mandatory nature of the procedure. Now, this is an extremely important point and I think it is pretty fair to say that if that procedure is not mandatory and by mandatory we mean the following. That when a domain name registrant applies for a domain name with the registration authority, that one of the clauses in the registration agreement states that by registering this domain name with this registration authority you agree that any third party may claim against you based on this particular procedure. That is what we view, we call this mandatory but obviously there would be a consent at the registration stage. I think it is fair to say from a dispute resolution perspective that if that is not set up in such a way, that is to say if the agreement from the defendant is asked only when the dispute arises that the defendant will always say no, I don't want to do this procedure because obviously it is in his interest to do so at that stage. Then the administrative procedure will have no practical relevance. This can be almost guarantied because all the defendants will say I am not willing to follow this procedure. So, I think this is a very important point. Do we make it binding in the sense that his agreement is expressed at the registration stage? And certainly on this one we would like to have some views.

(Mr. Mathias Kerber): I don't think I will agree that everyone would not agree to the arbitration at the point when the dispute comes up. Fairly often if you are faced with a choice of going to the ADR or facing a law suit which will be definitely be more important, you will actually as a defendant go and try the ADR rather than sit back and wait for a suit to come in the courts. So, I think it shouldn't be mandatory at the point of registration, I think it should be optional at the point of registration. So, that each domain registrant can decide when he registers whether he wants to submit to the ADR for this registration. So, it shouldn't be absolutely mandatory for all registrations, but at the point of registrations the owner of the domain or the registrant should make this decision. And if he hasn't done it then he can be offered the ADR by the claimant or he will have to face a court action and he will have to make the decision whether to go the whole court case which is not only much more expensive at that point of time. So, I don't see the case where everyone will deny the ADR as and when he sees this action because he will definitely see the court action which is more expensive so I don't see that point.

(Ms. Laina Greene): Partly I can see the points that Mathias is raising and I can also see the points that you are raising. In the clear case of an abuse, you know somebody who is doing this mal fide its very unlikely we are going to say yes. So, I can understand that to a large extent. Perhaps the two things that could be applied as something to look at is one definitely that this would exactly be the reason why we limit it to cyberpiracy and not to any dispute. Because you have competing legitimate interests it would seem rather drastic to make it mandatory. And secondly, we could also if in the case that you do not, I mean the general view is that not to limit it to cyberpiracy then we need to be very careful about the consequences of the decision instead of immediately binding the registrars to cancel the name there has to be more of an appeal process or a time period for objection or etc, so as not to cause unjust situations. I think these are two things we need to carefully look at before we just jump into a mandatory procedure.

The other point I just want to quickly raise when we think about it, and I think you did raise it in paragraph 144. It is a very unusual procedure here, because technically you are making it mandatory for ICANN to have a contract with the registries. That mandatory for the registries to have it with the registrars, and the registrars to the applicant. But ultimately the rights that are given is the right to a third party to endorse this against the applicant which is very unusual in ADR procedures. And it is for those reasons I would strongly recommend that we try to limit it to cyberpiracy, but if the general view is not to then let's be very careful before we jump to consequences.

(Mr. ....................): Just a point of clarification. Particularly in those mala fide cases I think a defendant would rather go and defend himself in the ADR rather than in court. Because he would already know that he stands little chance and a court case would be more expensive. So, I think in the case where he has a good claim he would rather go to court and fight it out to the end. In the case where he knows he has a very shaky claim he would rather go the cheap way and just try his luck in the ADR. So, I think the arguments are reversed here. So, someone who just goes and cybersquats over a hundred domains would not want to incur all the court cases and would in this case either give up the claim immediately or go the ADR. So, I don't see this where everyone would deny this ADR at this point.

(Mr. David Muls): Just before Harald makes his point I would like to say that as a matter of experience in litigation be it ADR or court litigation, the natural tendency of the defendant is to drag his feet and the natural tendency of the defendant is to try to avoid having the thing moving forward as quickly as possible, to try to slow down things, to try to frustrate the proceedings. I don't know whether there are any litigation lawyers in the room but I would like to hear from your experience in litigation whether defendants are eager to accept a court proceeding or an ADR procedure to solve a particular problem. I think probably not.

(Mr. Harald Alvestrand): I think you could liken this to playing poker. I see your ADR and raise here one court action. So, the question is whether you can get the other party to fold. The idea of making it mandatory so that you have a way in which you could (end of tape)........... that the arbiter in the case of legitimate competing claims should definitely be allowed to say this is a matter I cannot rule on. And he should be encouraged to do so in the case of legitimate competing claims and to say this is something for which there is either no precedent or has to be judged on a case by case basis and it is outside of the competence of the ADR ruling. I think that is a way to limit it to cyberpiracy without the other dish to fall in, which is that if you limit it to cyberpiracy you get a pre-trial on whether it is cyberpiracy or not before you can get to the first trial. Its better to go to a simple ADR where the dispute resolution guy can say this is a clear case of abuse go one way, this is a clear case of non-abuse go on the other way, or this is help!

(Ms. Laina Greene): What can't the ADR be the pre-trial?

(Mr. David Muls): Only one. Let’s do only one.

(Mr. Tan Tee Jim): David, I am a litigation lawyer and I can tell you that in Singapore even if the parties want to drag their feet, they would not have any chance to drag their feet.

(Mr. David Muls): You have a very efficient system.

(Mr. Tan Tee Jim): Now, this issue of mandatory nature of the ADR is a very complex issue. I would personally feel very uncomfortable to compel the registrant to agree or to submit to an ADR system which is going to be alien to him, it is international in nature, it is totally something that he is not familiar with in Singapore. So, to compel him to agree to that system when he does not know what he is going into I think that is pretty unfair to him as a registrant. There seems to be some kind of a conflict between your paragraph 145 which recommends that the ADR system should be mandatory, and your paragraph 165 which says that a party complainant has a choice. So, where the registrant is compelled to follow the ADR policy, a third party the complainant has a choice of whether to use the ADR or the national court system. So, this makes it all the more unfair to compel the registrant to submit to the ADR system.

(Mr. David Muls): I think as Laina said that is an excellent point. I think it is fair to say that the way that this is structured might be viewed under certain national legislation as unfair. Because, basically you put the claimant in a better situation under than the respondent. I think that is a correct statement. We don't know how to get out of that yet. We believe that if we don't make it compulsory, the practical effect of the administrative procedure will probably be very close to zero. So, that is the sort of conundrum in which we are in. I would like to add to your point that its clear that under certain national legislations, for instance the German national legislation, it is doubtful whether the agreement of the registrant in a standard contract clause as a consumer would be held enforceable under their law. So, from a legal perspective the enforceability of the compulsory nature of the clause in certain jurisdictions may be put into question. In other jurisdictions I believe they would be more open to it because of the policy reasons behind it. There is a fair way, particularly if you can still go to court to try to resolve possibly egregious cases of abuse that is always kept at the back of our minds. But, it is entirely correct that maybe due process considerations that have an effect on this particular question.

(Mr. Harald Alvestrand): Don't forget that for perhaps 90 per cent of the population of the Internet the court system is an alien procedure too.

(Mr. David Muls): And by the way, picking up on that one of the reasons why we suggested the online system is to make it much more accessible. We believe that a party who does not necessarily have legal representation, it will be easier for them to write what they thing about their situation and send it through a website to an arbitrator than requiring formal briefs to be deposited in a court. So, that was in part the spirit behind the online system to heighten the accessibility of the procedure.

(Mr....................): I would like to bring up a point on acronyms. For example, Trade Development Board is too long a name for the Internet Domain Name Registration, so you can actually register it as TDB. But, the acronym itself is already taken by another group and that shares TDB for example, or WIPO for that matter. How do you separate the acronym aspect from just the spelling to the intention of the person registering the name? Can you actually differentiate that?

(Mr. David Muls): I am not sure I understood the question.

(Mr....................): WIPO represents this in your context, but it can mean another context in another WIPO, because it is an acronym. So, it is not a name by any meaning but it is an acronym. So, if you have this dispute over the name itself, it can only see as a spelling on the surface and how do you actually go into an intention of the name because it is an acronym not a legally registered trademark.

(Mr. David Muls): I think you are going to the merits of a particular dispute and the answer to your question is that the arbitrator having regard to all facts and circumstances of the case would have to make a determination. And if the party is entitled to the acronym that obviously would be an important consideration in the context of the dispute. But there is no way to kind of up-front say how it would be resolved.

(Mr. Alban Kang, Partner, Alban Tay Mahtani & De Silva): Yes, I am Alban Kang again. There are a couple of points to which I would just like to raise in relation to the short discussion that you just had. Firstly, on the ADR procedure itself, I believe and I accept the principle that in order for the ADR procedure to be effective it must be compulsory. Otherwise, again I am a litigator, you will find the defendants would invariably try to drag their feet or even avoid being served with the necessary documents. But this is a good faith system, so if you want to register your domain name and you believe that what you are doing is being done in good faith, then there should be no reason to have any fear to submit or to consent to an alternative dispute resolution in the event of any dispute. So, on that basis I think it should be made mandatory. Now, addressing Tee Jim's concern that the ADR system may be alien, then there could be a mechanism which provides that if the registrant in this case is not comfortable with the ADR procedure he can in any event, I will just not preclude that under this report we sought to submitting to any national jurisdiction to have the dispute heard. But the point here is that there must be some form of procedure to resolve the dispute both for the benefit of the claimant as well as the benefit of the registrant. Otherwise you have a situation where the claimant wants to resolve the dispute, but cannot catch hold of the registrant who is out there somewhere in cyberspace, but just refuses to come to the table at all.

(Ms. Laina Greene): I think one of the things I picked up from the last comment as well brings to light another point I want to say is that when we discuss this Report, although we are going through it chapter by chapter, we need to also consider the totality of what we are trying to protect and how we are trying to protect it. And I think two key points that came out of the discussion that strikes me particularly from Tee Jim's point about the unfairness of the situation, and David's response that how you handle this unfairness balancing the interest. And the other concept of the enforceability of it as well because you are giving third party rights, and the third party the enforceability of it may not be in certain jurisdictions as well. Seems to say that the way to get around it again as I said would be two key issues and that would be the issue of the scope of the issues and the consequence. And the consequence when we look at it, I think we don't only look at the consequence as put here but in the totality of the whole Report which includes contact details and suspension etc, etc.

(Mr. David Muls): Let us then move to the next question immediately related, what about the scope? I think the question has been sufficiently introduced. If this procedure is put in place, what should be its scope? All types of disputes or restricted to clear cases of abuse. I am sure we will have observations on that one.

(Mr. Mathias Kerber): As I don't think that people are going to agree on what is cybersquatting, what a clear case of abuse, I think we just have no choice but opening up the ADR to all cases and see how the plan ends out. I don't think it is going to be easy for the ADR to make this decision after an initial look just at the case to decide we are going to take this or not. And some rights would be trampled upon if the ADR had this initial choice of saying we take this or not, if they offered this procedure in the first place. So, I think it will have to be open to all cases.

(Ms. Laina Greene): Taking up on the point that Harald's brought up, I agree with you in that sense of it is the difficulty to define that. So if we do open it to all disputes, but we do have an indication that where the arbitrator finds that there are clearly competing interests and this person seems legitimate, this person seemed legitimate and then that case should be referred and not heard.

(Mr. Mathias Kerber): I think that the right to the ADR the arbitrator or the person who is a third party, resolution provider should always have this right to say I don't feel competent or I don't feel informed enough to make this case in your local laws.

(Ms. Laina Greene): I am not saying should have the right to, should maybe made to interruption).

(Mr. Mathias Kerber): No, no obligation. If both parties agree that the resolution provider should be the one to make the decision, he shouldn't be forced to hand this back to the courts but I don't think they will do this and as soon as the resolution provider will waver in one way the other or show that he is not clear about it, it will automatically go to the courts because that's where the real resolution is going to lie in the end. So, I think yes there should be a recommendation that this avenue should be opened but it should not be mandatory either.

(Mr. David Muls): Maybe we could have some views from the persons who are local lawyers from the area of litigation whether they would believe that restricting the scope would have an influence. Whether it would be in your view appropriate to restrict the scope in view of the possible mandatory nature of the procedure. Do you have any opinions on that?

(Mr.......................): I think in principle I would restrict the matter. If it is going to be mandatory, I mean then you could look at the scope itself and I would say in principle yes, that the scope should be limited. And certainly the first ground rule is that it shouldn't be mandatory to such an extent that we resort to national courts. It is not possible at all, the national courts must be available. And secondly, mediation and arbitration should also be available. That is the first ground rule that springs to my mind as regards restricting the scope.

(Mr. David Muls): Thank you. Any other views on whether the scope should be (interruption).

(Mr...................): Just a quick clarification. I think due to my previous comment about the scope. I think I have to clearly state that I don't think it should be mandatory, because you can't limit the scope easily and then out of that follows that it should be a voluntary or a decent optimal option. So, if it turns out not to be mandatory I have to agree that there must be some scope but we would run into severe problems of limiting the scope then. So, I think the only option would be non-mandatory and full scope.

(Mr. David Muls): To come back to the question of scope and how that would be determined there are two possible approaches. Assuming the procedure would be restricted in scope, one approach would be at the start of the procedure to make it that the arbitrator or the decision-maker makes a determination whether the dispute falls within the scope of the procedure, and if not the ruling would be it is not really the scope of the procedure and therefore the case will not proceed. That is one approach. Another approach would be to collapse as it were the preliminary question of the scope with the ruling on the merits by setting a standard, that is a standard on the merits that would only capture abusive practices. I think the second approach would have the advantage of not having a preliminary dispute which could indeed be a waste of time, because you argue for possibly weeks about a procedural matter and then you have to go to court anyway. If you link the question of scope to the question, if you join basically the issues to the merits, and you set a standard that is appropriate for abusive cases you may gain some procedural efficiency.

In that light I would like to draw your attention to paragraph 244 of the Report which attempts to restrict the procedure while proposing a standard on the merits that is intended to capture only abusive practices, paragraph 244.

(Ms. Laina Greene): So, this would be the consequence? You are sure of this?

(Mr. David Muls): This would be the standard for abusive practices and if you meet the standard you lose. Any observations? Obviously as a legal matter it is not simple to set a standard that would accurately capture abusive practices.

(Ms. Laina Greene): Can you clarify the second point, 244.2?

(Mr. David Muls): There is a request for clarification regarding 244 subsection 2, the domain name prevents the complainant from registering a domain name corresponding to its rights. That is intended to capture the following situation. Mr. X registers Coca-Cola, does not want to sell it, just wants to keep it. Coca-Cola shows up and says I want to have this domain name it corresponds to my trademark and it is valuable for me. And Mr. X says I don't want to give it to you. It is a sort of blockage without any legitimate interests in the name.

 

(Ms. Laina Greene): Wouldn't it be better to clarify as the person does not have a legitimate interest in the name?

(Mr. David Muls): Those are sub parts to a general standard which says the complainant would have to show that the registration or use of the domain name by the domain name holder is without relevant rights or interests and unfairly. And the small points are just illustrations of situations that would capture that scenario. But, it would be included in the standard, the legitimate interests. I think it is not realistic to expect a solution at this stage, but I think we had a good discussion about this and I can perhaps summarize. There is hesitation in the audience about the mandatory nature of the procedure, some people are in favor, other people are against. Those that are not in favor of a mandatory procedure generally, but not all would probably like it to be restricted to abusive registration practices, if a preliminary ruling by the decision-maker on that question is required that may complicate procedurally the proceedings. And one possible solution perhaps would be to join that issue to the merits of the case and to set a standard on the merits that captures only abusive practices realizing that it is not easy to set such a standard and that there will be always like in any court cases disputes that are on the borders of these cases and will be difficult to resolve. But I think that is just a matter of life, that is just the way things are. Is that a fair summary of the situation?

Now, turning to another important question about the remedies that should be available. Does the audience believe that it would be appropriate to restrict the remedies in the ADR procedure to remedies that concern solely the status of the domain name. That is to say the transfer, the cancellation and the suspension. One of the reasons we have included this is precisely to deal with some of the concerns that have been expressed, in the sense that the domain name registrant all of a sudden gets involved in a procedure that he is not necessarily familiar with and if it would be possible in the context of such procedure to award damages that might be a very heavy blow to a registrant. So, the underlying spirit of the draft Report is to say let's take an alternative dispute resolution procedure, the effects of which would be relatively limited in the sense that they would only affect the status of the domain name. And they would be restricted to suspension, cancellation and transfer. Is there anybody who thinks the alternative dispute resolution procedure if it is mandatory in nature should be open to other types of remedies such as damages. Anybody in favour of that? Most people seem to agree that it would be appropriate to restrict it. Maybe ask a sub-question on this particular issue. Many of the problems could be resolved by being a bit creative. For instance by creating a shared portal page. I don't know if you know the Scrabble.com situation to illustrate the point. Scrabble the trademark was the subject of the dispute between two companies Hasboro and Mattel. Hasboro had the rights to the trademark I believe in the United States and Mattel in other parts of the world and they got into a conflict about who could use the word or the domain name Scrabble.com. They argued quite a longtime about this, spent a lot of money and they ultimately came up with the solution which is quite elegant we believe, where they agreed that there would be a web page Scrabble.com which basically is a map of the world and which says if you are interested in the United States Scrabble.com sales points or whatever please click here and this is owned by Hasboro. And if you are interested in another part of the world, please click here this is owned by Mattel. So, it is an elegant solution to a difficult problem and the question that we have is the following. Do you think that the decision-maker in an administrative procedure should have the power to impose such a solution or should such a solution only be adopted with the agreement of both parties realizing that commercial interests may be relevant in this respect?

(Mr. Mathias Kerber): For the simple reason that there are other protocols than just web, I think this is non-workable. For example, having a portal page for Scrabble.com does not solve the problem of having lots of e-mail addresses under Scrabble.com and how to distribute them. So, I think this can only work with the agreement of both parties as the use of the domain name is going to be very important here. So, just for technical reasons, it is not only the web that is affected here. There are a lots of other protocols affected for which this will not work.

(Mr. David Muls): But assuming that it would work technically would you then agree that it could be imposed by the decision-maker?

(Mr. Mathias Kerber): I don't see how it could work technically, no I don't think so. Often I would say I would rather see a clear cut solution, a clear cut decision on a case rather than prolonging this and having lots of fights on who is going to maintain this portal page and who pays the cost for that and so on.

(Mr. Harald Alvestrand): Question. One other listed remedy is suspension. Which means it is not taken away, it is not given to the other party, it is just taken off-line. And would you say that suspension until the parties agree to what they want to use it for is a reasonable sanction?

(Mr. Mathias Kerber): I would say with the time limit yes. If you just mandate suspension and don't give a time limit they will never agree and the domain name will basically sit there useless, but I think there should be a suspension and the time limit and if after the time limit no agreement has been made then another decision will be taken by the resolution provider. The domain name that gets suspended indefinitely is no use to anyone, so I don't think it is a permanent remedy to anything.

(Mr. Harald Alvestrand): A useless domain name isn't the biggest disaster in the world, there are a couple of million of them.

(Mr. Mathias Kerber): But it is not what we want to encourage.

(Ms. Laina Greene): The example that you gave on the portal pages, clearly a case of legitimate interest in the name. So, again it is tied back to are we limiting the scope. If we are limiting the scope to cyberpiracy that is a non-issue and I can live with cancellation and stuff like that. But if we are talking about a case where it is open to also legitimate interest, then I am a little bit uncomfortable about cancellation. The portal page would be a credit solution I maybe able to endorse, but the cancellation issue I am a little bit uncomfortable because that person then has to go to court and try to get another decision, in the meantime he has his name canceled. So, I am wondering, I think the determination of the scope issue becomes important too, whether or not I agree with some of these things and so on.

(Mr. David Muls): Okay. Any other observations on this particular point?

(Mr. ....................): I would just like a clarification to point 159. It says the reassignment of the domain name to a different TLD. The TLD is part of each individual domain name, you can't take a domain name out of one TLD and reassign it to a different, it would become a different name. So, I think that needs to be taken out or rewrite it.

(Mr. David Muls): Maybe I can clarify by way of example what was meant. And this if you remember in the court proposals there was the suggestion to have a top-level domain .nom. And what this particular language goes to is, if you have a conflict between a person like there has existed McDonalds who has registered in .com, but he is an individual. A possible solution would be to say well as an individual if you are not conducting any business, it is just your personal web page or your personal e-mail address without any commercial interest, it would be appropriate to go to .nom and then allow the company to be in .com. But I take your (interruption).

(Mr......................): That would require that the ADR has control over what goes into .nom or not, then they may already be taken they may have to create another TLD where it is not taken and it would also mean that just for this case the person who has the old .com will run into lots of costs to rearrange their stationary and all that kind of stuff, just to find a solution where the trademark owner can get into .com. So, I think reassignment into a different TLD means registration of the domain in another TLD and then you create the same problems in that TLD if there are other people wanting that. And if one decision out of the ADR comes and decides that you have to go into that TLD and now someone else comes and contacts this reassignment then the ADR creates a loop where their own decisions are going to be disputed, so I think this will not work.

(Mr. David Muls): Because we are a little bit pressed for time, unless there are more comments on this particular point, there is one more, but I would suggest the following. We have a final comment on this particular issue and then before lunch we deal with just one more issue briefly, the enforcement of the decision that may come out. And then we leave the rest for the discussion in the afternoon. So, one more comment on this particular issue and then one more question.

(Mr. Harry Tan, .......... Business School): Hi! My name is Harry Tan I am from the ........... Business School. I have got a question more than a comment, two of them actually. The first one would be dealing with the role of arbitration in the domain name disputes. Have you thought about keeping a consistency if you have various numbers of arbitration over a certain point of law dealing with the protection of domain name. Because by nature of arbitral awards, because they are secret how are you going to keep the consistency and predictability. Has WIPO thought about that? And is WIPO thinking about creating a database of awards available online? The second point, because you asked a question and there was no response. The question you put up was, shouldn't an arbitrator be given the power to decide? The solution is to put up a portal site you have one half of this page and you have another half of that page. My understanding of arbitration, is that if you do that as an arbitrator the award will be appealed on. Because what you have done is you have acted as if you are a mediator and not an arbitrator. You have not given the clarity, the choice of what the parties wanted. Either I get what I want or he gets what he wants. If you want a mediator, you go to a mediation process and you get a solution. But you can't make the arbitrator have the power to say, guys this is the solution do this. And that is my understanding of arbitral awards. Thank you.

(Mr. David Muls): To come back to your two points about the consistency, that is a fair point absolutely and I think there are some paragraphs in the Report that go to that, paragraph 188. What we suggested are basically two approaches to promote consistency. A first approach which we believe would be relatively uncontroversial certainly in the administrative procedure, not in the arbitration. Because arbitration inherently, traditionally is confidential proceeding. But in the administrative procedure we propose to publish all the awards on the web. So, that by itself will help to keep the decisions consistent. And secondly, we float the idea without making any recommendations. We ask for further comments on whether it would be useful to have an appeals procedure that would be the primary purpose of which would be to keep the decisions consistent. So, practically speaking what would this mean. There would be let's say tens and tens of dispute resolution service providers that will administer these disputes that would come out with various decisions, some of which may be inconsistent. And there is a possibility to go to an appeal in another institution, a centralized appeals institution which would ensure or promote a minimum of consistency between the various decisions coming out of the as it were first instance rulings. This is a proposal that we have made seeking comment more than recommending anything in particular. So, that goes to your first point. Your second point about the power of the arbitrator to make the decision. I think it is a valid point. My initial reaction would be that arbitration is inherently a consensual procedure and if both parties upfront would have agreed that such remedy can be appropriately given by the arbitrator, probably that would be upheld. But it would be strongly dependent upon the mutual agreement of the parties to give such a remedy. We have heard from one of our experts Mr. Mark Partridge, an expert from the United States. He has said in the course of our discussions that in the United States some courts have imposed such solutions for particular problems, but you are right that those are court proceedings and not arbitration. So, one cannot necessarily conclude from one to the other. So, I hope this gives you some feedback on your questions.

If there are no more observations on this particular point and the question of appeals, I would like to turn to the last issue for this morning, it is a question of enforcement. And this is a very important point too next to the mandatory character of the proceedings. The proposal is the following. A decision coming out of the administrative procedure is notified to the relevant registration authority, we are in paragraph 183, and that authority implements the decision in its database. And the decision would be either a suspension, a cancellation or a transfer. So, technically it should be implementable. This is viewed as a great, great advantage of the system because it basically avoids highly complex enforcement issues if decisions are issued by foreign jurisdictions. That is to say if a court case rules upon a case in a jurisdiction other than where the registration database is held it is not a trivial matter to enforce that decision in the jurisdiction of where the database is held, and particularly if a trademark owner is faced with potentially hundreds of egregious cases it would make it extremely heavy to get an effective resolution to the problem. So, certainly among the trademark community this direct enforcement mechanism is viewed as one of the main advantages of the system and we would like to see whether you have any observations on that particular question. Anybody here who is against the direct enforcement procedure? Only a Panel member.

(Ms. Laina Greene): No, again I think I will go back. Its very hard to comment again when one is not clear on the scope. And I think if the scope was clear, then this mandatory method to registrars would seem a little less onerous. The second point is, if you link it to your appeals process because of the point of consistency was raised, what if you are in a situation where there has been a clear inconsistency and their appeals process is still underway, are you still going to allow for this mandatory cancellation or whatever?

(Mr. David Muls): Yes, one of the thoughts, I believe it is not included in the Report, but one of the thoughts that we had is at the outcome of the procedure the administrative procedure in the first instance, there would be a window for the defendant to either file a claim in a local court or an appeal if an appeal would be incorporated into the system and such filing would stop the direct enforcement of the award. It is not in the Report, but it is something that we have considered and I think it may be something that is worthwhile coming back to. Because there is something to the point that if we say you have the right to go to court but immediately we enforce it, it is hard at least on the defendant. So, that would be a possibility to provide for a reasonable period to file a claim either in court (interruption).

(Ms. Laina Greene): On the other hand, when you are dealing with a clearly abusive case then it seems okay. I can live with that on a clearly abusive case, but again that is a standard (interruption).

(Mr. David Muls): Although procedurally you want to give even the person who is clearly abusive as from a procedural point of view, you want to give him the option.

 

(Mr.........................): Coming back to your example of Coca-Cola. For example if Coca-Cola collectibles, it is not owned by Coca-Cola but it is just a market phenomenon, Coca-Cola collectibles. If someone with a register is Coke collectibles.com, in selling Coca-Cola collectibles and yet it is not owned by Coca-Cola how do you actually look at the issue. Because if you apply this rule directly then you are actually saying that nobody should be involved with collectibles as interest. So, here you are dealing with an expansion of what is the asset name. When the asset name has an expansion like a collectable or market place or anything else that is enforcing the asset and yet is not owned by the mother company, how do you go about differentiating your rule?

(Mr. David Muls): I would propose that we make a distinction between the procedure and the substance of the dispute. You are raising a scenario that is tricky, or maybe tricky on the substance and there the reality is that the judge or the decision-maker or the arbitrator must make a ruling. Once he has made a ruling there must be a procedure for enforcing that ruling. So, I don't think we should solve the difficulty of the substantive question, by putting in question the procedural mechanism in place to enforce the decision.

(Mr........................): The reason I raised this, I just work for Walt Disney. So, when we look at some of the licensees what they do is when they work with Disney as a company sometimes you talk about IPO, their shares go up by the association with a company like Disney for example. So, when they want the association in an international scene this will help the company which is not known to become well-known and valued. So, when you are looking at assets like that, that is being attached to something that is valuable it has market value but is subject to abuse or so. Because any Tom, Dick and Harry can borrow the asset name to enhance its own company's presence and if such a name appears as a domain name how do you look at it? Because there is intention and there is also abuse and there is also a market name like collectibles which cannot be just pushed aside as a company's name. Well, if you go to the website it belongs to a completely unknown guy who operates on his own and then he is doing a business taking advantage of that name. So, in that respect how do you differentiate?

(Mr. David Muls): I am sorry to keep coming back to the same point, but these are questions that would be faced by the decision-maker and the purpose of the Report is to propose a set of procedures that would potentially allow the decision-maker to make rulings in such cases. And I fully agree with you that in certainly in a fair number of cases it would be difficult to take a decision. One possible approach for avoiding that problem is to restrict the procedure to clear cases of abuse. So, I think that's probably the best answer I can give you at this stage. I would suggest if the audience, there are two more comments and I suggest that after that we break for lunch.

(Mr. Tan Tee Jim): I think it is going to be difficult to argue against enforcement and the public relation and abuse procedure. If you have an ADR system I think you must have a system to enforce the decision. And you should also have a system whereby you can appeal against the original decision. Now, what it all means is that you set up a separate supra national sort of court system and there is another reason why when the mandatory procedure becomes a bit unfair, because you are compelling a person to have to adopt a procedure which leads all the way to an appeal procedure. And whatever cost maybe and all these considerations have to be taken into account. So, it is another reason why the mandatory procedure seems to be unfair. Perhaps I can suggest that and this relates to the scope of the ADR system, maybe for disputes between two national parties or two parties in a particular country, maybe you don't make it mandatory. Or if the parties wanted to adopt the ADR system there is a choice. But perhaps for disputes between two parties it has to be decided by the residents in the country the ADR system is not mandatory. The ADR system may be mandatory in disputes where the parties are not nationals of the same country, that is one possible compromise.

(Mr. Ken Fockler): I just thought I would share a little with you some feedback from the Toronto hearing on most of what we have covered in the last little while. I tried to get Laina to come but she might have introduced the whole scope question. We spent almost zero time on that. I think there would seem to be general agreement that it wasn't obvious upfront whether it was an abusive situation or not and that we were designing a process and going ahead at least till some point came when the parties either followed through or they had this opting out opportunity. There was a lot of comment and discussion, it was fairly heavy there were a lot of words. There was quite a bit of confusion about a process that seemed to be encouraging possible mediation, maybe even use arbitration. But suddenly you had a mandatory in here but it wasn't quite as mandatory as you kept reading because you got out of it at any time, you could appeal. When it said binding it did not really look like it was binding. And so everybody agreed and I think some of the WIPO people agreed yes. A representative from ICANN was there, Mike Roberts showed up and he expressed the same (end of tape)...........at least some discussion on scope at that time.

(Mr. David Muls): Thanks Ken. Just to also reflect your point there is a lot of value to the point of trying to keep it as simple as possible. And one possibility would be considering that mediation and arbitration are optional at any event. If the arbitration procedure would be mandatory we would not even mention the two others because they would be optional by nature. Just to simplify the whole thing. Any way on that last point I suggest we break for lunch. There is one more issue that perhaps we could usefully touch upon in relation to dispute resolution after the break. That is what standards should be used to resolve the dispute. Which is also a relatively legal discussion. Apart from that, I suggest we move to the two other main chapters, which I think will be faster to deal with, famous marks and new gTLDs. Thank you very much.

(Mr. .....................): Ladies and gentlemen we have about one and a half hours for a leisurely lunch. So, the discussions would reconvene at 2.45 p.m. sharp. Please be back here in time for it. For the participants there are actually many eating areas around this area. If you are not sure, you can come speak to me. And finally, please ensure that you have your personal belongings with you. Thank you.

(lunch)

(Mr. David Muls): We still miss some people at the table, but I think we can proceed and they will slowly trickle in. I have been requested by the organizers to try to wrap up between 5 p.m and 5.30 p.m. I think that should leave us sufficient time to deal with the remaining issues. There are basically two large parts left, the question of the famous marks and the introduction of new gTLDs. But, before turning to that with your permission we would like to spend some more time on the last issue in relation to dispute resolution. Also an important issue but a particularly difficult one. The question of what law or rules should govern the merits of a dispute. This is taken up in paragraph 196 and following of the Report. And the basic question is the decision-maker when confronted with a dispute, what criteria will he use to decide the matter. I should like to emphasize again that to the extent the scope of the dispute would be restricted to clearly abusive cases, the relevance and importance of the criteria while so being they would remain important. But, they would certainly be easier to draft because in such cases the decision would be relatively easy to take. So, in the report what is proposed for discussion purposes is a combined approach, a novel approach. And the combined approach consists of stating that the decision-maker in the administrative procedure can on the one hand look at the laws that may be applicable to the case. For instance, if both parties claim to have a right in the name, presumably the decision-maker would look at the laws that are applicable to both names of each of the parties to see whether that is correct or not. For instance, both parties may have trademark registrations under different national laws. So, one thing would be the laws that may be applicable to the case. And the second element that the decision-maker would take into account is a set of basic guiding principles which have been listed in paragraph 199. And which we felt reflect adequately the considerations that have been taken into account by various courts and various jurisdictions to resolve these questions. And particularly, in the cases where both parties have legitimate rights to the name. Balancing these criteria may produce useful results. So, to the lawyers in the crowd I would suggest that to come forward if you have any comments on this particular approach, whether you believe it would be better that even in the administrative dispute resolution procedure the decision would be based only on applicable law as determined by the decision-maker. Or only on administrative rules or whether you believe a mix between the two is an appropriate approach? Any comments? Does anybody think that in the context of the administrative procedure the decision should be based only on law? In the sense that the decision-maker would look only at the law to find a solution? Let me perhaps take a step back, which may facilitate the discussion. Do you believe that a decision-maker should have large discretion in terms of determining the results as is the case I believe in certainly in arbitration there is a tendency to give the decision-maker a lot of power to evaluate the facts and come up with the decision. Or do you believe that it is better to give specific guidelines to the decision-maker so that the result would be relatively predictable? Do you feel that it would be wiser to be more flexible about this or do you believe it would be better to regulate in that respect the decision-maker's conduct? Any observations? Nothing.

(Mr. Ken Fockler): I will just observe that in our hearing a couple of days ago in Toronto, there were some comments made and I can't quite find the reference as to the characteristics even of the decision-maker. And there were people with views that said that not only should this person know something about the law, they should know something about the Internet. It was quite a concept. And further, there were people concerned about human rights and other rights. And so again, trying to have this balance, so again if there are others David has appealed to the lawyers in the crowd, if there are any non-lawyers we should hear from them as well. Although somebody said there are mostly lawyers out there but it is kind of hard to tell.

(Mr. David Muls): I think Ken raised another significant issue which may solicit some more views in the crowd. Is the problem that if there is a conflict, particularly again it is the same story if the scope is not restricted to clear cases of abuse, one side has claims to own a trademark, the other side pleads freedom of speech. What type of decision-maker would be an appropriate decision-maker to take a decision in such case. The problem is made more acute I believe because to keep the procedure relatively flexible and cheap it would be preferable to have just one decision-maker. One of the solutions to that conundrum would be to have three decision-makers. One that represents an arbitration, what would happen is that one party would choose one neutral decision-maker, the second party would choose another neutral decision-maker and then those two would agree on the Chairman. So, in a three panel situation, the concern of having a balance of representation at the panel level of various constituencies would be taken care of. But, if we start in-storing mandatory three panels the costs start getting very serious and it is not clear that, that would be the best approach. So, what are your feelings about the election of the sole decision-maker in cases like this?

(Mr. Tan Tee Jim): I suppose as a lawyer I would say that of course the dispute got to be resolved according to legal principles and according to law. But quite aside from that, I think when you are in a situation where a conflict of rights are involved, conflicts of interests are involved inadvertently law is involved. How do you decide between two contesting parties unless it is according to a certain set of principles? And invariably those set of principles relate to law. So, even if there is a lay person deciding in this ADR procedure, I think that lay person must have some understanding of the law or some knowledge of the law, so we can't run away from that. Now, if you want to look at other solutions apart from legal, then you are going to the area of mediation perhaps and trying to get the parties to resolve and come to some third compromising solution which is other than legal. So, the answer to your question I think is, it seems to me you have no choice but to go according to the legal route according to the legal principles which has advantage also of predictability as well and consistency.

(Mr. David Muls): So, can I just follow-up on this particular point? Would you see any value in drafting a set of guidelines that would be as it were the rules that would govern the merits of the dispute that would be employed by the decision-maker to solve the case, knowing that those set of guidelines would be distilled from cases that themselves are based on the law. Or do you believe that it is not necessary and the decision-maker should directly be able to look at the law and cases (interruption).

(Mr. Tan Tee Jim): I think there should be guidelines and those guidelines can evolve through experience of Internet disputes and so on. Certainly there should be guidelines to promote predictability.

(Mr. Ravi, Lawyer): My name is Ravi, I am from a private practice, I am a lawyer as well. Just wondering if these ADR decisions are all appealable, then surely it must be decided according to principles of law. Because on the appeal when you go to court you have to decide it upon principles of law again. So, there can't be a distinction between the principles applied and the ADR situation as opposed to the principles applied in court. Because otherwise there will be no finality and everybody will say look there are a different set of principles at ADR and let's go and have a shot in court.

(Mr. David Muls): Yes, I think that is a fair point. I think technically speaking the possibility of resorting to a court after the completion of the administrative procedure technically would not be an appeal, because there is no relationship formally between the administrative procedure and the national courts. So, basically it would be not an appeal, but starting from scratch in a local court and according to the system that we have proposed such local courts decision would override the administrative results.

(Mr.......................): (The comment was inaudible).

(Mr. David Muls): No, I understand what you are saying the problem is that it is impossible to foresee what principles would be followed in all the courts around the world. And it would be difficult I think to imagine a scheme in this administrative procedure that would necessarily be based on the same principles or certainly the same rules that would be applied by the various courts. I think the maximum and this is what we have tried to do, the maximum that one could do is to distill from the various court cases that have occurred until now, some common general principles and then employ those in the context of the administrative procedure. And in that respect there would be consistency between the principles that relied upon in the administrative procedure and the court procedure. And I think that is the spirit of the recommendation. Any further observations?

(Mr. Tan Wee Meng, Lawyer, Allen & Gledhill): I think that the issue of coming out guidelines that's based on decided cases is sort of jumping the gun. Effectively the first question which the arbitrator has to decide is the question of the law to be applied, that is a conflict of law issue. If you then come up with guidelines based on cases which have decided Internet domain name disputes, you are in the sense defining a new law, an international law to govern these disputes. Then the question of the choice law does not apply at all. You are saying the choice of law is that of the law as defined by WIPO.

(Mr. David Muls): I think that is a fair comment. If we go along the route of the administrative guidelines, it is true that we are creating a new set of rules. I wouldn't say law, because it is an administrative procedure that has no binding effect and the courts are not at all bound by it. So, I wouldn't go that far, but certainly it would be a new set of administrative rules that would be created for these cases. And one final point is that those rules would be inspired by decisions in local courts and therefore would reflect as it were as far as possible the state of the law. But, I think I understand it would be creating a new body of rules for this purpose and it is debatable whether that is the best approach or not. I think the people who are in favor of this approach were people who felt that if you leave it entirely in the hands of a decision-maker, they were concerned about the lack of predictability. In the sense that the decision-maker basically would be able to do whatever he wants. I personally believe certainly coming from an arbitration background that concern for predictability is perhaps exaggerated. Because an arbitrator would look at the law and these people are lawyers and they would unless you have egregious circumstances, but normally I don't think that concern would be such a huge concern. But that's why the concept of a separate set of rules came up to increase the predictability of the outcome of the proceedings. But I don't know whether that would be as successful frankly.

(Mr. Chee Wana (?), Office of ........ Gulasingham (?)): I appreciate the importance of certainty. So, I was wondering whether you will consider providing for an express choice of law in the agreement when the registrant subscribes for the domain name? Or alternatively WIPO may want to consider some principle on the basic presumption on the choice of law for any kind of a dispute. Thanks.

(Mr. David Muls): In reply to that, we have indeed considered that but we believe there is a difficulty in the sense at the time the domain name is registered by the registrant. We know where the registrant comes from, from which country he is. But we don't know where the third party will come from. So, the registrant may be from France, but until the dispute arises we don't know whether the third party is from the United States or from Singapore or from the U.K. So, it is very difficult to stipulate in the registration agreement an applicable law because you don't even know what the nationality of the other party is. This is why we felt it would not be appropriate to do so, because you may end up with an applicable law that has basically nothing to do with one of the parties, it would be awkward. So, that is why we have taken this particular route. We felt that if it is to be decided upon the basis of the applicable law, a useful approach would be which is a standard approach in all arbitration rules where the parties have not selected the applicable law between themselves, we thought it would be appropriate to leave it to the decision-maker to decide upon the applicable law. And if you look at most of the arbitration rules from the International Chamber of Commerce, the American Arbitration Association, the WIPO Arbitration Rules that is a pretty standard rule in arbitration rules. If there is no explicit choice of law by the parties, then it is the decision-maker who at the start of the proceedings may choose the applicable law, but that entails delay because there might be pleadings about that particular issue etc, etc. I think I would suggest that we have one final comment on this issue and then we turn to the famous marks.

(Mr. Mathias Kerber): I think for ccTLDs it should be fairly simple to stipulate that the law should apply from where the registry is located. I only see a problem where the gTLDs, where either one should stipulate that the gTLD registry or the registration authority decides up-front where they are located and a similar agreement would be binding by registration, or that this decision has to be made. But I think that if ccTLDs should opt in for this whole process, I think there should be a clear statement in there that they should be able to stipulate their local law as the law that is applicable.

(Mr. David Muls): I think you are right, particularly in the situation where the ccTLD requires that there is presence in the country in question to be able to register the domain name. I think in that case I think you are probably absolutely right, because all the interests would be located in one jurisdiction. It is probably less true but still true for the majority of the cases where the domain name registrants is not required to be a resident in the country in question. But, still if the weight of that activity is in that jurisdiction with regards to the domain name, then I think your point is still well taken.

(Mr. Mathias Kerber): I think just the nature of ccTLDs being tied to a certain country makes it very easy to make this decision. If someone wants to be affiliated with this country by getting a domain name under that ccTLD they should be very willing to accept that country's law or not get a registration in that country.

(Mr. David Muls): Would you state the same position with regard to a ccTLD such as .TM, where probably everybody who registers this for another jurisdiction?

(Mr. Mathias Kerber): Yes, I would. I don't think selling domain names under a country, I think also it is a good income source for that country, it is a good idea but I think that the laws of that country should prevail. And then if that country wants to make business out of this they should form their laws accordingly or maybe have special laws for this case, but the country should still have control over this. So, I think it is still up to the country to make these laws and nobody outside should decide that if I have this country code in my domain name I can still do whatever other jurisdiction says.

(Mr. David Muls): If there are no more comments I would suggest we move to the next issue. The next one is an interesting question which has led to some discussion in the past, the question of exclusion. Let me give you some background. This is a measure that has been requested in particular by the trademark community. The concept is the following, under trademark law there are a number of trademarks which are considered well-known and famous or famous and well-known. There is some argument about what the terminology actually means, but we don't have to get into that. Basically, those are marks that are used very widely in the world or in a particular country and that have a very high degree of reputation attached to them. Best examples are Marlboro, Coca-Cola, Rolls Royce those types of marks. If you look at many of the cases of abusive registration practices, we note that many of the cases concern such famous marks. It would appear from the comments that we have received that particularly those marks are the subject of aggregious activities. And one possible approach to this problem is the concept of an exclusion and that would mean the following. Trademarks which are recognized as being famous and well-known for the purpose of this particular problem, that is to say famous and well-known for the purpose of the Internet let's say, would be put on a list and those names would be excluded from registration by any other party than the owner of those trademarks. That is the principle. How would that be established, that list? The Interim Report suggests the following procedure. There would be a panel of independent experts that would review applications for such status by trademark owners and on the basis of a set of criteria that has been in development for a number of years in certain committees at WIPO. These decision-makers, that panel would make a decision whether a particular mark merits the status of being considered famous and well-known for the purpose of this exercise. If the panel considers this mark should be famous it is put on the list, and therefore the registration of that mark is blocked in the gTLDs. This list is basically transferred to the registration authorities and at the time of registration there is a cross-check against the list to see whether that name is on it, and if it is the registration would be blocked. This is the principle. There are various sub-questions to that principle which we will get to in a second. But I thought it would be useful to open the floor for discussion of this measure as a matter of principle. Are there any participants in the audience who are in favour of this principle or who are against this and why is that their view? Any reactions?

(Mr. Mathias Kerber): First of all a question, you said gTLDs. Are you envisioning that this also applies to ccTLDs?

(Mr. David Muls): As currently stated in the Report, the position is the following. It would apply only to the gTLDs, but there is a suggestion that if the ccTLDs were to find this concept a useful one they could entirely on their own initiative and by their own decision adopt a similar local procedure, but then only for marks that are famous in that particular country.

(Mr. Mathias Kerber): Okay. In general I have to sound very much against this concept. I can understand famous trademarks being registered as famous trademarks and that the company registered as trademarks in a certain country. But domain names have many, many other uses other than trademarks and for example, my family name is a name, five kilometers from my home there is a big international company that happens to have the same name. After living under their shadow for years, I managed to register Kerber.org. I can envision that if they became famous currently they are well-known, but if they became really famous then they would be able to take my domain name away from me or I couldn't get it. I am using it for my family operations, like my home-page, my bother's home-page, my son's home-page and so on, and I don't think that there is any valid reason why I should not be able to get this domain name for non-commercial use. But domain names are not necessarily commercial, there is a lot of non-commercial use out there. So, I think the only thing that should preclude use of a domain name on the Internet because of famous is the use of the domain name. So, you actually have to show that it is being abused before you can take it down rather than up-front saying this is famous no one can get it.

(Mr. David Muls): That I think is a good summary of how people who are against this measure feel about it. I think that is exactly the arguments that they would use.

(Mr. Tan Ken Hwee): My name is Tan Ken Hwee, again I speak in my personal capacity and as a web master for the Singapore Society of International Law. I am against this proposal for the simple reason that I think it is too much protection for too few people. You are creating an infrastructure, creating rules to assist a very small number of corporate entities, I should have to state main examples, but I think we know the sort of companies we are talking about. These are the chaps who have the deep pockets to bring a dispute to a dispute resolution anyway. So, what are we doing when we say we give them preemptive protection, so that any variation or any variant of their name will not be registerable.

(Mr. David Muls): It will not be applicable to a variant, it would be the exact (interruption).

(Mr. Tan Ken Hwee): If it is not applicable to variants then it becomes even more meaningless. Because then you are saying that I will not allow a certain name to be registered. But if I tag on the name of that company together with the product, a famous example is Microsoft Windows.com, then this protection does not apply. Then it becomes even more meaningless and what do you achieve from it, you might not get anything significant at all.

(Mr. David Muls): Except enhancing the status of your mark because it is on the list maybe.

(Mr. Tan Ken Hwee): So, in essence I think it is necessary because the guys who are likely to benefit from it would be able to defend their claim in any case and it creates too much work for too many people. Even if the chap who is applying for the exclusion has to pay for the procedure. The work that has to be done to set up all this infrastructure in the rules it seems to me totally disproportionate to the benefit that is gained from it. I think that is about all I would have to say on this.

(Mr. Chang): I just want to mention that there are names that no longer exist as a company, but the name still has value. That is people are holding to names hoping to sell it to someone who will use it to gender the gap to become famous. So, when you are saying printing a list, I am against it because there are lists, there are many, many names that are still popular but there is no company. So, how do you determine what list and on what ground that we cannot use those words?

(Mr. Ahmad): I am against a general list but if it is case by case its top refer a domain as is own I think it is okay. Thank you.

(Mr. David Muls): Could I maybe add a little twist to the discussion. I think the objection about or the problem with the variations is a very fundamental question and we do recognize that it would be impossible to predict all the possible variations that could be invented or thought of. And restricting the exclusion to the exact string is a major weakness because indeed the effectiveness of that protection would be relatively limited. So, I think that if the exclusion is adopted, that is a problem that probably will not go away. But I would like to add two elements to the discussion. What would the audience feel about it if such exclusion was limited to commercial domains. This is again picking up on the suggestion of this morning that in certain top-level domains particularly those that would not be commercial in nature other rules may apply. And that such exclusions will only be possible to be obtained in commercial domains. And the second question that I would like to put on the table is to try to counter-balance the efficiency problem because it is restricted to the exact string. How about implementing a sort of a presumption? That is to say if you are on the list, and somebody has registered a variation then the burden of proof for you shifts to the other party to explain why they took that particular variation, so, there would be some use. The problem of the exactness of the string would be compensated by a presumption in favour of the person being on the list. So, those two additional questions. Any observations about limiting this measure to commercial domains? Anybody?

(Mr......................): As I said in the previous time we came to this problem, I do not think that intellectual property rights stop at any domain name borders. And people will still insist on their rights even if we have some commercial or non-commercial, commercial only, totally non-commercial domains and will not stop any infringements. So, I think just this idea of having different top-level domains that are commercial and non-commercial in nature will not really help anything. On the other hand, shifting the burden of proof from, just because of variations, again is very, very restrictive to the people who may have a valid reason or just any reason to register this domain name. And I think it will really be up to the famous trademark owner to find these sites, because it is fairly easy because he has his name, he can go and check them under all existing TLDs, and find reasons why this should not exist rather than a presumption of he has all the rights over this name in whatever way they could be used and then preclude valid use by other people.

(Mr. David Muls): May I ask whether there is anybody in the audience who is so courageous to be in favor of this proposal? Is anybody in favor of the exclusions? Who is against the exclusions? It is fair enough to say there does not seem to be a tremendous amount of support. Well, I think many of the arguments that have been raised are very valid. I mean the efficiency argument is a good one. There is also I think an arguably, there is a tension between this proposal and one of the guiding principles of the process being we do not want to extend the rights currently existing in the physical world. Because I think it is fair to say that if this is introduced it pushes the limits of that particular principle. So, on the other hand maybe because it almost becomes an emotional subject at one point. It is the big boys who want to extend their rights. To put it back into perspective we have spent sometime thinking about how many trademarks that may actually may qualify for this particular measure. Because while in trademark law the famous and well-known concept is accepted at the national level. That is to say each country decides what is famous and well-known in its particular jurisdiction, an internationally famous and well-known mark as such has not really yet been recognized in trademark law. Therefore, only a very few trademarks would probably qualify for this, we are talking about the hundreds. So, one could argue that considering that it would only apply to a couple or a few hundred cases, the choking effect it will have on the Internet would be very limited. So, that is the other side of the story. And all of a sudden this has generated comments.

(Mr. Tan Tee Jim): I am not asking any question. But this is just a personal observation. It is interesting that in this particular forum the audience seems to be against protection of famous marks. I have attended other Internet workshops and forums in other countries, in the industrialized countries, in the United States and in Europe and the call was for the protection of famous marks. They all want protection of famous marks. But, us here, in Asia or at least in Singapore it is the other way, the attitude is no protection of famous marks at all and well-known marks. And I think this reflects maybe the different perception in different parts of the world. And this is something that WIPO may have to consider when coming up with this proposal that you have to take in the views of all countries in the world, all sectors of the world as well. If we only hear from the West or from Europe I think definitely the conclusion would be protection of famous marks. I can see here in this audience that, that is not necessarily the solution to the problem.

(Mr. David Muls): I think to be fair there is also some, a fair number of trademark attorneys even in the western world who question the usefulness of the measure, because of the efficiency argument. But, there are others who are very much in favour of it.

(Ms. Ng-Loy Wee Loon, Law Lecturer, National University of Singapore): Good afternoon. I am Ng-Loy Wee Loon, I am from the National University of Singapore at Faculty of Law. I am a senior lecturer there teaching IP law and I just wanted to add a comment to what Mr. Tan Tee Jim has said about how the western world, the more developed world would like to have greater protection for famous marks. And this is reflected in the greater protection that they have in their trademark laws anyway for famous marks and for well-known marks. In the U.S., in Europe we all know they have the anti-dilution right which is not recognized in the Asian countries. In Singapore in particular, we have just passed our new Trademark's Act and it is quite clear from it that the position the Singapore Government has taken is that we are not adopting an anti-dilution right. So, with this varying levels of IP protection for famous marks or well-known marks, what I am afraid this regime, this suggestion or this recommendation will result in is actually an inevitable or inadvertent creation of actually a new right imposed upon the Asian countries especially Singapore. I notice from I think paragraph 238 of the proposal that the language used in the Report is very, very much the anti-dilution type of language. And if we bear in mind that the spirit of this Report is not to create a new right for domain names outside of intellectual property rights. And by that I think that what is meant is that we are not going to protect the domain name system beyond what the famous marks and well-known marks merit under traditional trademark law. There we have to look very carefully at paragraph 238 or something like that where they use anti-dilution right language. And following on that I also noticed that in that paragraph the language used is actually even wider than the European concept of anti-dilution right. For example in Europe they require the famous mark or well-known mark proprietor to prove that if he wants protection, to prove that the defendants aren't authorized to use makes unfair advantage use. The use is to take unfair advantage use which results in, which is detrimental to the distinctive character or repute of the mark. Whereas here, it is just by (use ?) and if we want to confine protection for domain names through trademark registration or through traditional trademark laws there we have got to follow it more closely. Perhaps to be more consistent this Report will have to take into account WIPO's Standing Committee for Trademark Designs and Geographical indications made in July 1998.

(Mr. David Muls): Thank you. Two observations. I think we must make a distinction between the concept of a well-known famous mark in the physical world and the idea of an exclusion for such marks for the purposes of domain names. When I said that there is a tension between the guiding principle of the process of not extending rights and this concept of an exclusion, that statement was meant solely in relation to the exclusion. In the physical world, I am sure you obviously know the relevant article of the TRIPS Agreement. The TRIPS Agreement does recognize the concept of a famous and well-known mark in its section 2 article 16, where it extends article 6 bis of the Paris Convention which is basically the well-known mark concept to goods or services which are not similar to those in respect of which a trademark is registered. But then it adds provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the registered trademark and provided that the interests of the owner of the registered trademark are likely to be damaged by such use. So, there is a recognition at the international level of the concept of a famous and well-known mark. And it applies also to other goods or services, but you have to prove an element of damage and I think that is the biggest difference with the exclusion. Because it would not be necessarily using commerce etc, etc, and so on.

(Mr. Tan Tee Jim ?): I would also like to pick up again on your comment that it may only be a hundred marks that are being affected by this. So, I just wonder what are we going on about doing all this for these few hundred marks who are A, very well here. They can actually look after themselves and we are setting up panels and everything just to make sure that these people are protected and don't have to fulfil their own diligence in protecting their trademarks. Just for a few hundred domain names. No, I don't think this is what ICANN and WIPO should do. They should look after the interests of the broad majority and not of the minorities.

(Mr. David Muls): I recognize and I understand what you are saying although to be fair to those corporations they do have to spend quite a significant amount of money just in policing the Net to see what is happening with their marks. And it is not an insignificant job for them, on the other hand it is true that they have many resources at their disposal.

(Mr. Tan Tee Jim?): But I must say that every other trademark owner who does not have a famous trademark or whatever has the same problem. They have to police their rights in those countries where they want to go to even not being famous the same problem. Why should they not then be protected to the same extent? So, I think small trademark owners run the same problem, so why should the big ones be protected even more?

(Ms. Laina Greene): Yes, I just wanted to pick up on obviously everybody's points that are very eloquently put across. The concern about small was very interesting. Here, we are discussing the small numbers why are we creating this extensive mechanism which is something that people have said. And your intervention also looks at the other side of the story where people say well it is so small in numbers it should not affect the system. So, it really depends on which side you want to look at it. Now, this is a very clear case of balancing interests. Obviously most of you being trademark lawyers in this room, have led people with legitimate interests who may be having a name that is very badly registered in Singapore even as a trademark or as a company name or as a personal name and you don't want to have exclusion for have these people to come in. From an Internet industry point of view it becomes to the issue of scalability of domain names and people would be very concerned about protecting a small number of interests. Especially when you add the issue of variations to the name and it affects the scalability of domain names. Then the other point that was raised very eloquently from the lady from NUS as well, was the fact that we have to be very clear we are not creating more rights than the existing ones. And as you rightly pointed out in the TRIPS Agreement, the question will be the damage and the usage. And a general exclusion already presumes damage before you suggest even there. So, those are some of points. But, perhaps looking at the other point of view, because obviously there is a strong interest in people with big (...........?) and they have been lobbying this issue very strongly. Perhaps one way to look at it is look at the totality of the issue. We went through (end of tape) ...................... question about contact details and making sure everybody can be tracked down and availability of the information, then we went to looking at ADR. If you look at the totality of it, it may not be so bad that we are not in support of general exclusion. Because there may be other things that have been included in there that will help them protect themselves.

(Mr. David Muls): I think that is a fair consideration.

(Mr. Ken Fockler): I just thought I would also add some of the experience from the Toronto hearing and there was quite a bit of focus on 237 and 238, because Canadian laws, as I understand it, don't deal with dilution. And some of the terms, there were some aggressive Canadians who liked to comment on the U.S.-centric position of some of these things and said you need a little language clean up in some of these places. So, we made our points there as well, or I should say I didn't, I let my brethren do that.

(Mr. David Muls): Any other comments on the principle? May I turn to one sub-question that is a bit buried in the Report, but is a very interesting question and I would like to bring it to the fore. The question is raised by paragraph 244. What I would say now does not necessarily only apply to the exclusion, I would like to broaden up a little bit what is literarily stated in that paragraph. It may also have relevance to dispute resolution. So, what I am saying even if you don't have any exclusion it may still be a grounds for bringing a dispute. And the question is the following, the discussion traditionally on the protection of IP rights in relation to domain names, traditionally focuses on trademarks. But there are other strings I would say, there are other terms that we see coming to the fore and we see are being registered by persons for speculative purposes. For instance in the Hyderabad regional consultation you had interesting testimony from a number of local persons who said that names of famous actors were being registered as domain names and then they were trying to sell them in the same cybersquatting type of situation. So, an actor by definition is not necessarily a trademark, is a concept of personality rights. So, the basic question is what do you think about including as a basis for protection either as a basis for dispute resolution or even perhaps exclusion if it were to be adopted? Strings that represent personality rights, geographical indications, for instance, Sydney 2000, typically when famous events or movies which probably would be trademarks, but famous events are registered or announced and people rush to register the domain names and then try to sell them. Do you believe that such words also should be protected or do you think that will be going too far? This is an interesting issue that has not been discussed that much and it would be interesting to see what the audience feels about it. Anybody has any views on this?

(Mr................): As grants for exclusion I would clearly say no, but as grants for disputes I would say personality or geographical names which most likely will be trademarked by the city or the country anyway should be grants for dispute and then normal dispute resolution. So, having a famous name, you may have the same rights to the name as the famous person that would have to be found out or there would be a resolution on this. But, I think as basis for exclusion definitely not same as famous marks. There should be no exclusion based on any kind of list of names anywhere.

(Mr. David Muls): Thank you. Any observation by the trademark persons? It would be interesting to hear what they think about this issue. Mel Gibson.com should that be reserved or should that, if a person who is not Mel Gibson and who wants to sell this name to Mel Gibson, should that be a grounds for transfer of this name to the (interruption). Something if he has no connection with the name, assuming it is an abuse to a speculative registration. The basic question I think that this raises is whether you believe that its appropriate to have brokerage of domain names. I think that is really the question. There are some people who find that a secondary market for domain names is entirely appropriate and that the persons who have the initiative to register these things and then sell them at the premium are basically not doing anything else than some of the financial service industry. I don't know if that is their argument. Any other persons who have any observations on this?

(Mr. Mathias Kerber): I am generally against brokerage of domain names for the simple reason that there is no value added by me registering a domain name and selling it to someone else. If there was value added, if I could add a value to this name and then provide a service to this I would not have a problem, but just registering a lot of names and selling the same string to someone else for more money, I think there is something wrong with it. Although, I can't point to any legal grounds to stop this at the moment, this is something for the lawyers. But it just feels wrong that someone should be able to grab up all the names for small money and then sell them off for big money holding them away from other people who could have got them from the original registry. So, I think there should be some value added requirements to it, if at all. And I would be very careful with it even then. If I just package it nicely like write it on a piece of paper and put it in a nice envelope is that value added?

(Ms. Laina Greene): Taking Mathias' point up there, I think one could also keep in mind the issue of scalability in that sense. For now, we are talking about a limited number of top-level domains and it is in the anglo-saxon language and the combinations of the anglo-saxon language for domain names is limited. And so if you look at it from that as a resource, because if we are promoting electronic commerce and the way you get on the cyberspace is through a domain name and your websites, then I would tend to agree with Mathias in that sense of looking at it. Because brokerage could lead to a lot of inefficiencies and abuse. So, I think it is an interesting concept because you might say well that person was creative, but if you look at it from the point of view of domain names, IP addresses as a resource of cyberspace, then you might want to look at it slightly differently.

(Mr. David Muls): Any other observations? Just let's forget about the exclusion and who would be in favor of personality rights geographical terms as a valid basis for canceling a domain name? Who would be in favor of that? Who would be against it? It is pretty evenly balanced. I am trying to be objective. If we have no more comments on this particular issue, I suggest we move to the last chapter and all of a sudden we are moving significantly faster than this morning. It does not surprise me, because the first two chapters tend to be the ones where the most meat is. The final chapter goes to the creation of new gTLDs, which is a difficult issue for WIPO. Mainly because that discussion is obviously not driven or cannot be driven solely by intellectual property concerns. It is clear, I think it is accepted now by everybody that domain names as such are not trademarks they may be used in a branding way, but as such they can be used for other purposes. So, driving the discussion solely from an intellectual property point of view it would not be the most appropriate approach. What we have tried to do in the Report and in the initial round of consultations is to see what the extent of the problem is that currently exists. And on the basis of that survey we have considered under which circumstances new gTLDs could be introduced in a way that would be consistent with some of the legitimate concerns that are held by intellectual property owners.

So, the first thing that we did was to see what type of problems arise and how frequent they are. Now, one of the difficulties that we have faced is that there are really very few comprehensive studies on the number of problems. And many of the commentators that we have heard have testified that a lot of the problems never really arise to the surface, because they are dealt with informally between the owner of the domain name and the owner of the relevant intellectual property right. Or they are for the time being just not solved, and we had testimony in particular by a gentleman, a lawyer, who represented Porsche which was quite interesting at the San Francisco hearing, who showed that there were more or less 170 to 200 variations upon the name Porsche. They were not situations where they were people who were called Porsche or anything like that. They were websites that sold parts for Porsche cars. So, actually basically speculated on the brand recognition hoping to attract people to their website and therefore promote the sale of their particular products without the authorization of Porsche. And those cases were just pending. They were not reported in any judicial decisions, they were not reported in any particular articles. So, we came to the conclusion that one cannot rely solely on looking at what cases actually came out of the court as an indicator of how many problems existed. And we feel it is extremely difficult if not impossible at this stage to do a scientific survey of the number of problems. The only thing we felt we could do is to get a feel for what is out there and it seems that certainly for the well-known marks there are cases where there are multiple infringement situations that are difficult to handle for these companies. Now, it would be interesting I believe for the Panel to see whether any of you have any practical experience with such type of situations or whether in this particular region these problems have not yet arisen. As I said before, in India there was interesting testimony that showed although Internet usage there is not as extensive as for instance in the United States, some of these problems were starting to arise. And you will read in the Report in sections starting from 254 some quite colorful interesting testimony about these things. So, is there any experience in the room about these types of situations or generally things are relatively smooth in this area? Maybe from the registrars themselves because they are close to the actual activity?

(Ms. Agnes, SGNIC): You are asking for people who register famous domain names?

(Mr. David Muls): No, I am just talking generally about in your experience did you have situations where people basically are fighting about a particular domain name, whether it was famous or not, just conflicts about domain names.

(Ms. Agnes): Yes, but normally they are resolved out of courts and we only have queries, people asking who should have the right to the names and all that. Where cases where the partnership have gone sour and people are fighting for the names. And we also have cases of people running virtual car, resellers of secondhand cars, registering names of cars. And most of the time if the so-called famous car company they would just have to send a letter and the next thing we know is the person who is holding the name would just opt to drop the name. So, it is quite peaceful here.

(Mr. David Muls): I think that is probably true for a lot of the ccTLDs by the way.

(Mr. Bill Sykes, Media Data Systems): We have had three cases with problems with domain names. One was settled amicably and two of them are probably going to go on to legal action. The one that was settled amicably is we have a particular trade name in .com and we found someone in the States who had registered a domain name as a .org. And we did a little research on it and found out it was quite an innocent registration on his part. We contacted him, we paid his expenses for setting up his domain name and he sold it to us and it was very amicable. Two other cases are not so amicable. One of them is they took our trademark, dropped the last letter and have been using it.

(Mr. David Muls): This is because they want to circumvent the NSI policy that requires the exact string.

(Mr. Bill Sykes): That is right. The exact string and yet, the front ten or twelve letters are exactly the same. So, it is very easy for somebody to miss-hit and go to their website. What we got them to do, we are going through lawyers, what we got them to do was to shut down their website. But what we haven't been able to do is to stop them from linking to a new website. And they are also trying to resell this disputed domain name because we have tried to buy it but they don't reply. So, we figure the only thing we can do now is to serve a lawyer's letter and take action.

(Mr. David Muls): May I ask how long this has been going on?

(Mr. Bill Sykes): Well over six months probably closer to nine months.

(Mr. David Muls): And I guess you feel that on the face of it you are entirely in the right because the other guy is (interruption).

(Mr. Bill Sykes): Oh! yes because he is really playing off of our trademark and particularly when you see it using our trademark to go to a link to a completely different website where he is promoting the same products as we do.

(Mr. David Muls): Just to illustrate your point we have had testimony from the owners of the Playstation Games. They own the trademark Playstation, and somebody had registered with NSI Playstations in the plural. The NSI policy does not apply, it requires exactly the same string. And basically they found themselves in the same situation as you are in the sense that they have to basically start a heavy procedure for a clearly egregious case. And they felt that if there was some way of trying to get this settled in a more efficient manner that would be quite useful.

(Mr. Bill Sykes): The second case which we are also having trouble with, is they have taken our trademark and put it in the middle of a string of names and then trademark them, trademark the string. And they have trademarked it in the EC in Germany which is a particularly difficult trademark jurisdiction. And of course they have got their own website, they have done a number of other small things, but as our lawyers have told us they are minor infringements because it is hard to come on to a direct infringement because our trademark is only pending in the EEC. And this is something you might be interested in, because the jurisdiction of our trademark is in a tax haven that is not recognized by the EEC. And so therefore, we can't get a registration in the EEC. And therefore, it is pending until some kind of tree action takes place.

(Mr. David Muls): Can I ask a question as a business person? I think arguably this is a case that is perhaps less clear cut than the other one. How would you feel about it if there was a procedure available outside of courts that would allow you to have a first cut at the problem, and then if the result was not entirely satisfactory you could still go to court then. Would you consider that added value or would you (interruption).

(Mr. Bill Sykes): Oh! yes, very much added value. In fact we tried in the previous case to go to Internet and of course they wouldn't take the case. But in this particular case yes, if we had another way of sitting down with these people and hashing it out, we would certainly use that avenue. The other times where we had people infringing on our domain names or on our trademarks normally they go away once we take some kind of an action. So, if we could go to some kind of a mediation I think most of our problems would go away.

(Mr. David Muls): Thank you. I think your comment is very typical of many, many of the observations that we have received. Maybe one difference is that you have three cases. Some of these people are confronted with, we had testimony in Washington from AT&T, obviously a very well-known company that they are confronted on average with 15 to 20 new cases per month of this type of game where they vary the string etc, etc. So, to expect the company to each time serve a writ and follow the regular court procedure is a heavy burden to actually get the effective relief in those circumstances.

(Mr. Mathias Kerber): I would just like to ask about these cases whether this is just a case about the domain name or about the use of the domain name? Like what is being sold behind or on the website, or is it just a case about I want to own this domain name that someone else owns, but maybe using for some private reasons?

(Mr.......................): (the response is inaudible).

(Mr. Mathias Kerber): So, they are actually infringing in other ways, other than just only the domain name also?

(Mr.....................): (the response is inaudible).

(Mr. Mathias Kerber): Okay, so there is some kind of confusion after someone goes to the website that they might think that they go to your site rather than that. Okay, that I understand. But in the first case I don't even see how you would have a handle against someone having a .org when you have a .com and then they do not even infringe on any of your rights other than just having the name and then maybe perhaps just use it for a private website or something. I would have a problem with going to court or going to any arbitration procedure with this kind of case where someone, like I said I am owning a .org, where a big company five kilometers from my home owns the .de, the .com has been taken by someone else. And I would have a big problem if someone told me I can't have that just because that company has a trademark on that name. I am not trying to infringe on them.

(Mr. David Muls): Just to maybe clarify. This is type of discussion is exactly the type of discussion that one would expect to have in the framework of the dispute resolution procedure. I think what we are trying to do is to create a forum where that discussion can take place. So, I don't think that for the purpose of this occasion we can, the purpose is not to come up with the solution to the actual problem, but more to make sure that both parties have an adequate opportunity to present their case and get it solved relatively efficiently. So, just to contrast a little bit the purpose of the process with the actual discussion on the merits.

(Mr. Mathias Kerber): But, I think we have gone a bit far away from the new gTLDs and this whole thing at the moment.

(Mr. David Muls): We are going to come back to that immediately.

(Ms. Laina Greene): Just a quick comment. I think I was quite interested in your submission because you were one in favour for brokerage and yet someone having problems. Just touching up on that point because it does affect new gTLDs, because there is this question of combinations of. I am just curious how do you feel with somebody, because somebody raised this point earlier about acronyms. What if someone has a legitimate acronym that happens to be a variation of IIBM instead of IBM. What is the feeling on that? Do you think it should be something that should be protected? And coming to the issue of usage again, ADR is there for the purposes of facilitating disputes and if you look at the way the TRIPS Agreement and everything else is written, it is on the basis of, I mean trademarks are business identification. They are defiers for within services, commercial usage. So, if a person has a domain name alone without anything else usually there is very little connection to goods and services, or deception and confusion. And secondly, the person could have a website that is completely different from your product, how do you feel about that?

(Mr. Bill Sykes): Fortunately, we haven't had that problem. But when this was brought up before I was thinking of WWF which is World Wildlife Foundation or the World Wrestling Federation. And the thought I had there was, they are in two completely different areas. If you mimicked trademark law in domain name registration then you would say WWF in wrestling is fine and you would have it assigned in a different category. And perhaps if you did more to mimic in domain names mimic trademark then you would have less problems.

(Mr. David Muls): I think that opens the discussion to a possible approach to these problems. One of the problems is caused by the fact that everybody, certainly most people want to be in .com. So, there is no possibility of co-existence and many persons feel that if there would be additional gTLDs, there would be more opportunity to live together in peace so to speak. The trademark community is not against I believe, I do not speak for the trademark community as such but I think it is fair to say that they are not as such against introducing new gTLDs, but they have seen this activity in .com. And I think they are concerned that if you open up new gTLDs without doing anything about the current procedures that there would be a wave of registrations just to grab some interesting names that persons could then turn around and try to resell. If we look at what happened in the CORE situation, as you know at one point there was a proposal to introduce seven new gTLDs. And we know for a fact and the CORE representative has presented testimony to that effect in some of the regional consultations that prior to going into business, they did not go into business ultimately, but prior to when they thought they would go into business there had been quite a large number of people who had registered, reserved for themselves domain names corresponding to famous marks in the hope of then, being able probably to sell them to a trademark holder. So, while on the one hand the introduction of new gTLDs may create more opportunity for peaceful co-existence, if nothing is done to try to alleviate some of the concerns it may open the door to a significant way of speculative activity, particularly the trademark community feels that if we create many, many new gTLDs in one go. If we started a hundred there is so much possibility that there is a concern of loss of control basically about what their trademarks are doing on the Internet. And they also feel considering the nature of the Internet and the amount of information that one receives on the screen, that in the long-run branding will be extremely important. In the sense that if you see a banner and you see a name immediately you associate it with a particular company. It is felt by some in the trademark community that the power of branding because of the sheer amount of information that one receives when you go through the Internet will be more important or at least as important as the physical world. So, there is this concern of the value of a brand on the Internet and the potential for it losing control over it with the opening up of a large number of gTLDs in one go. So, I am just saying that to open the discussion and I would like to see what people in the audience think about the creation of new gTLDs, the opportunities that, that may create for co-existence, the risks involved etc, etc. I believe we have quite a good chunk of time left to have a good discussion on that.

(Ms. Laina Greene): Just to add an issue that perhaps you didn't touch on. There was another part of the comments as well that concerned that even with the creation of new gTLDs that you may run into a situation where the famous trademark holders concerned about potential dispute will just go into all of those and just register the names as well, which then defeats the whole purpose of scalability as well. So, that was another point that was raised in some of the consultations.

(Mr. Tan Tee Jim): I think this whole area is a very difficult area, and I think this opening up of new gTLDs. I am aware that the Internet community and INTAR has promoted that there should be a controlled expansion, controlled creation of new gTLDs. Perhaps one way to resolve this problem is, let's look at the basic issue, the basic issue is if a person applies to register a particular domain name, what is his intention? Does he intend to speculate on the trademark, to exploit a particular mark or exploit a particular domain name? And I think it was suggested somewhere that for some people that perhaps and this relates to contact details, the extent of contact details to be disclosed. Perhaps when you are applying for your domain name, maybe one of the requirements is A, what is your intention in relation to that particular domain name that you want registered. And secondly, how do you derive that particular domain name. Perhaps you want to register AT&T, maybe you are Mr. An Tec Tac or whatever it is, perhaps you explain the reason why you want to register and how the name is derived at and why you choose this particular name as a domain name to be registered. So, maybe this relates to our point very much in discussion early this morning and that is perhaps the contact details, the extent of the details to be disclosed to be given during registration to ascertain that this person is a bona fide applicant.

(Mr. David Muls): So, if I may summarize you are basically saying that the answer to the question of how many and how new gTLDs should be introduced (interruption).

(Mr. Tan Tee Jim): Even the whole issue perhaps revolves around the contact details perhaps.

(Mr. David Muls): So, you are basically saying that an improvement of some of the procedures particularly to the extent they relate to contact details would help alleviate some of the concerns that are associated with the introduction of new gTLDs.

(Mr. Tan Tee Jim): Yes, I think it does.

(Mr. Tan Ken Hwee): I must say that I have to disagree with the last speaker about putting in additional information at the point of registration. What that does is, it would seem to create a onus on the registration authority to do some kind of audit or some kind of evaluation as to whether or not the registrant actually goes ahead and fulfils what he stated and he intended to do.

(Mr. David Muls): I don't necessarily think that, that was part of the suggestion. I believe if I interpret the suggestion correctly that it could just be requested to be stated by the registrant and then if there is a dispute that could be taken into account to evaluate whether he should keep the domain name or not without any verification by the registration authority.

(Mr. ....................): Be as it me I would still think it is of somewhat limited value and actually the whole problem relates to this over focus on the .com TLD. I mean I think we should contrast the situation in paragraph 289 with the situation in paragraph 257. In 289 you have AT&T quite paranoid about any variation of AT&T that might be registered by anybody under the sun. In paragraph 257, you find that there are a whole bunch of domain names which have the word Telecom in it. And yet it seems as if they co-exist perfectly well and there isn't significant confusion in the minds of consumers as to which site is what. So, I think that companies would do well to put aside all these paranoia about similar names or variations of the names and concentrate on promoting their website and promoting it so that consumers would definitely know which site is what. I mean I will give you just two examples, United Airlines. If you were to guess, you would try and guess United.com, United Airlines.com, UA.com and all of those would be wrong, they are UAL.com. Now nobody is ever going to guess that. But a customer of United Airlines once he knows UAL.com he is going to go back to that and there is no significant confusion that United.com isn't UA. And similarly with Singapore Airlines, they are not SIA.com, they are not SQ.com, they are Singapore Air.com. If companies concentrated on their marketing efforts and say look this is my website, this is my address come, come visit me, I will give you lots of freebies whatever. That would seem to me to solve most of the problems and a lot of it seems to be that companies are the author of their own misfortune. I mean if AT&T were to go after every chap that comes along with an AT&T variation, then I would be a pretty happy lawyer working for AT&T. But I think sometimes the companies are causing their own grief when they get so paranoid about domain names. Thanks.

(Mr. Chang): I just want to bring up the point on brand recognition. Companies hire consultants for example myself we go and do brand evaluation, how valuable is the brand and how recognized is the brand. Now, to maybe Mr. ABC the brand is famous within his country, but nobody outside the country knows and now the brand is only famous to him. To his world, to his field of expertise. Now, we talk about famous brand names or domain names you have to first determine are they famous. On what ground they are famous or how famous is famous in one language translated to another trademark in another language. So, these are issues which famous would account for before you say no, these are the lists of famous names and nobody else can touch. Now, this is a case study like (second branding ?) in the States, they charge Intel at least US$30,000 for the word Pentium. When it was created, Pentium was unknown, but Intel is famous, so Pentium is attached to Intel as a famous brand name and it became famous. If Intel is created by me, I am nobody in a nobody software company. Now, the word Pentium or Intel would mean nothing, it would not be a famous name. It could be famous in one year's time. But at the meantime someone saw the name over Internet, trademark it or use it and so how do you determine famous brand name and the protection of those property? My feeling is move away from famous and look at just the name because someone who respected it has a right to it or has an ownership to it in his own field and look at that as just a generic name and see what you can do about it. Or, else you have situations like Apple which is Apple, but now is a famous company. Or, Orange in Hong Kong, it’s Orange and even trademark or brand Orange color. So, you are talking about brand name and famous domain names it will be a never ending story in that sense to determine. And I am afraid that if WIPO has one person looking at these issues on a legal point of view without looking at the marketing or the branding issues, then you will be stepping on many people's toes. Thank you.

(Mr. Ravi): My name is Ravi. I am from private practice, I am a lawyer. Sometimes I think we tend to forget the history of the Internet and its roots and sometimes we forget to tip our hat to where we have come from. Because in the old days the Internet was a place for academics, for disenfranchised individuals and a whole bunch of other people in which anonymity was one of the key words there. It was a rough and ready exchange and now big businesses have come and usurped it. And big business is saying look we want all these other things. We want your intention, we want derivation, we want contact details, we want a whole bunch of things. So, we have forgotten where we have come from and we are selling out sometimes to big business. Now, I am just trying to figure out where we go from here and if the idea is not to have an independent regime but to follow existing regime in respect to intellectual property laws, then I would submit that just having the contact details would be sufficient for a big business interest with loads of money to serve writs on individuals they think are encroaching on their intellectual property rights and not to go further than that.

(Mr. David Muls): I think it is a fair point in many respects. The contact details may actually be one of the key questions in many respects so I think there is a lot of value in what you are saying. I would like to bring back the discussion maybe to the particular issue on which we are focusing now is the introduction of new gTLDs. Let me just make this more salient and then you can proceed. We sense in the audience that this question should not be hijacked by the large trademark owners. That, I think is a fair statement of how the audience feels about it. Would the audience agree with the following proposition. New gTLDs may be introduced without prejudice of how many, but it would be useful to make sure that there are better registration procedures for instance by focusing on to contact details and by providing smoother dispute resolution procedures that are currently available? Because many of the trademark holders have taken that position. We have no objection per se, but we would like the procedures to be in place that could handle more smoothly problems that may arise. Would there be any objection in the audience against that approach? That is to say let us first make sure that these procedures are a little bit tighter than they are currently and then let us consider how many and which gTLDs we should introduce.

(Ms. Laina Greene): Can you clarify in that, I am looking at paragraph 276 except minus the last point.

(Mr. David Muls): Yes, debatable whether the last point should be included or not. But, I think the two previous ones would probably be deemed more important. Yes, it is true I am focusing on paragraph 276. Would there be any objections against that approach? Let us first improve these procedures and one studies the case, then the ground is right for new gTLDs. There is one person there who had a comment I believe at the top.

(Mr. Siroj Wal (?), Alban Tay Mahtani & De Silva): I don't believe that the introduction of new gTLDs will assist in domain name disputes. Well, you still have the same problems of various parties registering similar names. Essentially domain names are just Internet addresses and if they were to remain as just Internet addresses like a telephone number and not really used as branding the problem will not occur. And trademark owners or IP owners should concentrate on just marketing their own Internet addresses instead of protecting one whole wide ranges and thus causing further confusion in the Internet. Thank you.

(Mr. Mathias Kerber): I think we have to distinguish or we have to look at the problems that the new gTLDs are supposed to solve. I think the most important problem or the reason why lots of people are crying for new TLDs is NSI's monopoly on .com. And NSI is going to love you for trying to solve the contact and dispute resolution problem before we want to create new TLDs, because it is just in effect is going to extend the monopoly. So, I think there is a valid reason for creating new TLDs, so that more people can have a pie of the money that these TLDs are worth. But I don't think we are going to solve any dispute resolution problems by creating new TLDs, because the existing problems are just going to copy over to all the new TLDs and we are just going to multiply it and the only people who are going to be happy are the trademark lawyers.

(Mr. David Muls): May I ask this. This is an interesting point of view. To the extent that .com would become competitive and there are some steps taken in that direction. Do you think that new gTLDs are then required or would be useful.

(Mr. Mathias Kerber): Not necessarily. There are concerns about the scalability of .com itself. Though, I think we may not have hit critical point yet, we may do so over the next two or three years so we may need a .bis, but maybe not many more new TLDs. What I think is much more important is that we create a framework where we don't have the monopolists that creates their own resolution policies and so on and make sure that we don't have someone making a hundred million dollars a year just out of the registrations alone. And it will not solve the resolution problems, but at least the big problem that only one organization is earning from this is going to help. So, I think making a competitive .com is going to be a right step or maybe opening up to .bis and .com in parallel, but not much more. I don't think we really need (end of tape) .................. this and when I think about new gTLDs is that for many years there has been a total ban on registering new top-level domains, and what we are talking about when we are saying register or not to register new top-level domains is whether to continue the ban. I personally, regard the country code open registrations as people voting with their feet saying that it is valued more domain names. And that they might think of this as proving that the ban has been in place long enough. So, the question to my mind is not that whether there is value or not because the way we are treating Christmas Islands and Tuvalu prove that there is value, but how we should go about allowing people access to that value.

(Mr..................): Just to clarify. I don't agree with the ban on new TLDs, but I think just creating new TLDs is not going to solve the problem we are having here now. I would have no problem we have had 200 or 250 new TLDs, if the other problems would be solved, but I think we are just copying the problem from one TLD to 250 additional TLDs and everything is going to go haywire after that. So, I would love to see lots more TLDs out there, but I think the Internet is not ready and the technology is not really there and all this dispute resolution is just going to go and multiply and people are going to have to register in all the 250 TLDs to protect their trademark and so on. And there is not going to be real additional value if we just copy the same procedures and the same policies to 250 TLDs that we have in one. The ccTLDs gladly now have national laws and different national policies which stem this problem a bit. So I think there is a distinction between 200 TLDs that have the same policies, the same rules, just different three characters on top, and national TLDs where national laws apply and where each nation can make their own distinction. So, I would love to see more TLDs, but I think it is not going to solve our problem that we are discussing here today.

(Ms. Laina Greene): Just sort of trying to answer the question that you raised to the audience and answering it with the comments that the audience has given. I think it sounds as if new TLDs would be okay if it is taken in a totality of the issue, with respect to the issue of contact details as perhaps providing some rights to people who are afraid of their rights. But also addressing perhaps the issue of availability which we discussed earlier. Secondly, in terms of the ADR situation, I think we had some discussions about that and the limitation of whether or not consequences are drastic and how much time etc, I think those comments are valid. And it does seem that the audience was against that third paragraph of general exclusion. On that basis it would appear that people don't have as much problems with new gTLDs. Then comes the issue that Mathias just raised which is also in line with what Ken Hwee just raised. As you can hear from because it is very interesting actually, I am just going to make a very personal comment on this. It is very interesting to hear the comments that are coming out from the Singapore audience which is so A typical, and it is not the similar comments that we have heard from even trademark lawyers elsewhere. Because mind you some of those people who have spoken were trademark lawyers. There seems to be a great amount of pragmatism in Asia. I would say that very strongly, if you hear the comments that were made in terms of the marketing issue, I agree with Ken Hwee on that. If you really want people to come to your website there are many things you can do to promote the name to your particular website. You can advertise, you can give freebies etc. And when Agnes stood up and talked about things being peaceful, part of it is as ............... policy as well. If I am not mistaken when you give out a domain names you actually tell people not to expect it to be recognized as a trademark. So, you don't actually encourage this link between trademarks and domain names. So, ultimately I would say that in addition to contact details etc, and this concern that they don't want to have an unbalanced protection for the bigger trademark holders versus the smaller and other legitimate interests is this totality approach of saying there are other means in which we can also solve the problem and why not we address some of those as well.

(Mr. Bill Sykes): Regarding the gTLDs, my own practical approach if you create seven more gTLDs I will take my trademark and put it into all categories. So, the only way I think you should approach it is to limit the entrance to the categories.

(Mr. David Muls): And how will you do that?

(Mr. Bill Sykes): Well, I have no interest in going into .gov, I have not interest in going into .edu. So, if I have no interest in going to certain new categories that do have a wide following otherwise, I won't try to go into those categories.

(Mr. David Muls): Are you saying that thought should be given to what the new gTLDs would mean in terms of their contents? For instance, one of the things that have been proposed a long time ago by certain sectors is for instance for pornographic sites to have a triple x. I mean there is a lot of that stuff on the Internet and one approach would be to try to get more in a particular zone.

(Mr. Bill Sykes): So that you can regulate them more easily.

(Mr. David Muls): Yes, it is easier to identify where you are going basically. So, is it correct? Am I interpreting your suggestion correctly if I am saying you would be in favour of introducing new gTLDs, provided that they are very clearly differentiated and that they intuitively mean something those additional categories. For instance .xxx, .nom maybe another example for somebody who wants to (interruption).

(Mr. Bill Sykes): That is true, because my practical approach is going to be, I am going to register in everything I can if I think one of my clients might go into that category to find me. But, if I know that a category is differentiated and I know that they are not going to look for me there, then I have no incentive to go into that category.

(Mr. Ken Fockler): And no concern if somebody else uses your trademark in one of those differentiated categories?

(Mr. Bill Sykes): If it is clearly differentiated, I am less concerned. Because then they are not really trying to pass off. They are using it for some other reason.

(Mr. David Muls): I think that is a very useful point of view. And one of the concerns of, a number people plead for new gTLDs to promote co-existence. But, we believe that if the new gTLDs are not sufficiently differentiated, the risk is that you are going to duplicate the problem. And only a very clearly differentiated structure could actually in practice potentially help to really separate the various categories of activity. So, that may certainly be a useful approach to consider for the final report.

(Ms. Laina Greene): It sounds like I heard another point that you were raising. You said that why should I be registering in .gov, .whatever which touched on the point that Tan Tee Jim just raised. Should there be in addition to the differentiated classes the new applicant having some basis of justification for the name? Should there be or not?

(Mr. Bill Sykes): I think it is almost the same issue phrased in a different way.

(Ms. Laina Greene): Yes, except that one is the condition and one is a thing that you wouldn't do.

(Mr. Bill Sykes): I would then go back to his point or someone's point that said how are you going to check it? How are you going to regulate it if it is all voluntary what you put into the registration?

(Mr. David Muls): Because it would come out at the end of the day then that if a dispute would arise with regard to those, you would see what he is using it for. So whatever he has said in some respects becomes irrelevant.

(Mr. ..................): To that I have to add that purposes change. If I register a domain name now, in twenty years I may have totally different purposes. I may even want to sell it off or do something different with the same name. So, that may not even be valid anymore. But, I would like to pick up on Laina's point. I think what should go into this recommendation should be a general recommendation that a domain name not be seen as necessary the only identifiers on the Internet and that the new technology should not be developed for searching for a company or an identifier that defines this company and not to be stuck on the address or the domain name for doing this. And if this comes out very strongly and new technology actually makes it out there, the whole domain name dispute resolution will not be such a big problem. So, I think there should be a big up-front banner saying while this is there we will have this problem, but we suggest or we encourage people to come up with alternate directory technologies and so on to solve this problem.

(Mr. David Muls): It is not up-front its at the very end.

(Ms. Laina Greene): Paragraph 285.

(Mr. Bill Sykes): I think that goes along a little bit with what I mentioned to you earlier on. To consider using prefixes, not just gTLDs but you could prefix a domain name. For instance use a double A prefix for someone who wants to remain anonymous. Or a double X for somebody who deals in pornography. In that way it also takes some of the sting out of people who are worried about trademarks and just spelling out a trademark when they go into their computer that goes right to a site because you couldn't do that then. So, it takes some of the sting out of the trademark issue if you use a prefix rather than trying to go through a gTLD which is a much more serious matter.

(Mr....................): I think the hierarchical nature of the DNSO just ............. that solution. It just does not work. A prefix would either be a sub-domain or would be part of the name, but you can't mandate a certain prefix because everything under that domain name belongs to the registrant. So, just the technology does not allow that in this case.

(Mr. David Muls): I think we are close to finishing. My apologies for keeping you away from the coffee break, but we felt that we were pretty close so that we could wrap it up in one go. I believe the coffee break is still on, it will be coffee end as it were. Are there any other observations generally about everything that was discussed today? From the Panel?

(Ms. Laina Greene): I just want to make general observation based on the fact that I have been involved in this process for the last two years and I just wanted to complement actually WIPO, that actually in terms of the way the report was done. I think for those of you who are not privy to what's being going on, they have actually received so many inputs from so many people and I would like to complement the tremendous work that they tried to put together all the different points of views and make the different recommendations. And I would also like to complement the audience because I am actually very pleased that the Singaporean audience has been very participative in this Process. And I am sure WIPO would consider this into their Interim Report. And the third point I would like to say, if you look at the Report, it’s been really a lot of significant improvements about the previous reports. One point significantly I would like to point out for those of you who may not see the subtlety of it. One of the criticisms people had, had about the administrative challenge panel and the original proposals that came out of the IAHC, was the exclusivity of the arbitration center. And WIPO in response to having this regional consultation has to be commended for when you look in the Report does not preclude itself as the only body for ADR. In fact has come up with this concept of a list of different ADR procedures. And this was something that the Internet community had talked about and people in the arbitration section. So, I just want to complement the process, complement the audience and just say that it has been a very significant process indeed.

(Mr...................): I agree entirely with Laina and I thought that the Report prepared by WIPO, I think at a very short notice was very well done. It covers most of the issues, all the issues concerning Internet domain name. The other thing I wanted to ask WIPO is after this Process, you know after the closure you have a report in March, what are you going to do with it? Are you going to submit it to ICANN and to what extent is ICANN going to be bound by the eventual report that you are going to make after this process? What is the situation there?

(Mr. David Muls): This is a very good question and obviously of very large importance. The timing as we said in the beginning is the end of March. I think we will probably be on track, maybe some slippage but not a lot. And at that stage we will present the report both to the Member States hoping that they will approve the report as such, so that it receives also their blessing as it were, and present it to ICANN. Formally speaking I think it is, again I am not a great specialist regarding ICANN procedures and maybe some of the members of the Panel can help me in this respect. But I think it is fair to say that ICANN is formally under no obligation to implement the recommendations. What we hope is the following. If the recommendations are solid and realistic and have the support, not necessarily of every single person who has been interested by this debate, but of a large majority if there is substantial consensus behind the main ............ of the recommendations, we believe that it would be a logical thing for ICANN to adopt these recommendations. Now, we do not know what the timing will be for that adoption and that implementation. And it would not be realistic to expect ICANN even if they are favorable in regards to the actual substance of the recommendations, we cannot expect them to implement that in two weeks time. I can imagine that there will be a period of time during which these recommendations will have to be digested and then which process will ultimately lead to the adoption of the recommendations. That is how I view it. It is unclear at this stage what exactly the time lines will be and what exactly the procedures will be. But, what I can say is that the longer we are in the process, the more consultation there is between WIPO and ICANN to figure out how we are going to deal with this. And the consultation that ICANN is going to have in Singapore in early March where there will also be WIPO representative, Francis Gurry, who is heading the group on this particular issue. Probably part of their agenda will be focusing on this particular issue. But, I think maybe some of the Panel members can add something to that.

(Mr. Ken Fockler): Some of us are fascinated watchers of ICANN and the whole development of things over the last few years, don't know how long it will go on. I had suggested to David that if there are people that are interested either maybe it would be better as a separate discussion after this or over coffee. And we can open up and talk a little bit more from our own perspectives and interests. I happen to also sit on the board of ARIN the American Registry for Internet Numbers and we are wrestling with relationships with ICANN or how it would be forming Support Organizations. There are huge discussions over the DNSO Support Organization. How does it fit in? What are the expectations and will ICANN survive? All of it depends on which list you look at. Lots of fun topics, so to put it into perspective to this. But, this is the Process to make a recommendation and that's it and there is a lots of responsibility on ICANN's part to decide what and how they are going to do with it. And they may have other recommendations. And they have time lines and guidelines to go with it as well. But, we can get into some of that if you wish at coffee.

(Ms. Laina Greene): And I guess this will be a good opportunity to give an announcement. David already mentioned about the ICANN meeting that will be held in Singapore. It will actually be held in conjunction with the Asia Pacific Rim Internet Conference on Operational Technology, APRICOT for short, talk about acronyms. Which is the 1st to the 5th of March and it will be held at Suntech City co-located with Internet World. The ICANN meeting itself is on the Wednesday of that week, which is the 3rd of March, and it is going to be an open board meeting in the morning. I am a Chair of another group called the Asia Pacific Policy Legal Group, APPLE which is a famous mark I guess with the acronym. APPLE has been involved in this Internet governance issue since June 1996 and we have been closely involved with the IAHC people, CORE people and ICANN people. We have invited the Chair of ICANN who is Esther Dyson and she will be staying on, on Friday. So, on Wednesday the open meeting is more of an informational meeting, so you could find out what is ICANN, what is are all these different acronyms, he mentioned DNSO for example. There is a membership meeting going, how does WIPO relate to that. As mentioned, Francis Gurry will be here. And on Friday during the policy section we will have first Esther giving a key note to update people again, but we are also having a round table discussion on how this fits into the Internet industry. So, I would like to invite all of you to come and participate, it is at the Suntech City. The open meeting I think is truly open and the APPLE meeting you will have to subscribe to APRICOT. Details are on www.apng.org/apricot99 for details.

(Mr. David Muls): I would like to make one final observation and then I will pass the microphone to Geoffrey Yu, regarding ICANN and the implementation of the recommendations. One additional piece of information that is useful is, there has been recently a few months ago a Memorandum of Understanding between the Department of Commerce in the United States and ICANN. Where if my memory serves me correctly, there is language saying that ICANN will develop procedures for the registration of domain names and where it is explicitly stated that the WIPO recommendations have to be taken into account as a minimum in terms of how those procedures should be designed. So, we feel at WIPO that the fact that the U.S. Government has explicitly included the work that we are doing will contribute to enhancing the probability that the recommendations will be implemented. But I do think it is fair to say that formally we do not know exactly how that will go. And also I believe the European Community, and there are two very large blocks that are in discussion on these matters with tremendous economic power. It is on the one hand the United States Government and on the other hand the European Commission. And we know from the comments and from our contacts that the European Commission is quite supportive of the work that we have done so far. So, these things will all come into play in determining how this will develop. Having said that I would like to pass the floor to Geoffrey Yu for concluding remarks. Thank you very much.

(Mr. Geoffrey Yu): Before I say anything I would like to invite Ms. Ng perhaps to join us at the table here. Because we would very much like to associate the local organizer with the closing remarks.

(Ms. Ng Kim Neo): (Her comment is inaudible).

(Mr. Geoffrey Yu): I just wanted before making a few closing remarks to inform you that of course the final report will also be submitted by WIPO to its Member States. We do not know what the Member States would do with the report, but at least the international community at the level of the governments will be seized of the issues and recommendations. In addition, what we are doing in this whole area, in the area of intellectual property rights and e-commerce is being closely followed by members of the World Trade Organization. As you know, they are also having on their agenda e-commerce. And in fact they have a responsibility to report on the work that they will be doing to the Third Ministerial Conference which will take place in 1999. And as part of their programme of work they are supposed to take close account of work done in other international organizations, notably the work that is done by WIPO. So, I think the net result of all this is that whatever the outcome will be where ICANN is concerned, the international community at the highest level of government will be very aware and very well briefed. Having said that it is my pleasant duty to first of all thank once again the Registry of Trademarks and Patents and the Trade Development Board for making the facilities available to allow WIPO to have this fantastic in my view, exchange that we have been engaged in today. Our hope has been more than fulfilled in having so many interesting views and suggestions put to us which we will take into full account. I have to thank once again Harald, Laina and Ken for their very active and constructive suggestions and information. They are great experts, unlike me you might have noticed I am the only one sitting here who has kept quiet. Well, I have to admit this is the first time I have participated in such a consultation and if you come again for a second time, if I happen to be there I promise you I will be speaking more often. But, I must also thank David for the tremendous work he has done today. Not because he is a colleague of mine, but because I think he really deserves it. I don't know how many of you realize that English is not his mother tongue and that he speaks French. And it is very difficult I think listening to him today to know that. So, David thank you very much. And we must not forget also that he arrived yesterday morning from Europe and that he had to battle jet lag and speak eloquently in a foreign tongue at the same time. And he has done a great, great job, thank you.

(Ms. Ng Kim Neo): Well, I wasn't expected to speak, I am really caught off-guard. But I think it is really my pleasure of representing the Trade Development Board to be here today also because we feel that this is an area which is significant and is developing very rapidly. And from trade promotion agency it is also important that we should be following developments and these will ultimately have implications on Singapore's international trade. And in fact we are participating also very actively in discussions in WTO in developments in e-commerce. And recently also the Board has taken on the responsibility of promoting e-commerce, accelerate the e-commerce if there is such a word. And in fact I myself am very new in this area and I have indeed benefited very much from today's discussion. At first I was just going to stay on for the morning, but I have stayed on throughout the day because I found that this is indeed something that can be of great significance for us in Singapore especially if we move on into the information economy and we are promoting e-commerce and the development of Singapore as an e-commerce hub. So, when we were approached regarding this regional conference I think we felt that we should really bring this to Singapore so that many of you who are following this area would be able to contribute to the development of the ideas and contributing to the recommendations. So, I would also like on behalf of my colleague and the Registrar of Trademarks and Patents and the Trade Development Board to thank all of you for coming here today.

(Mr. Geoffrey Yu ?): We have now come to the end of today's program and on behalf of WIPO, the Registry of Trademarks and Patents and Singapore Trade Development Board, I would like to thank all of you the audience for your active participation to this consultation. We would also like to thank our panelists for their contribution today and as a gesture of our appreciation I may now invite Ms. Ng Kim Neo, our Senior Director to present souvenirs to

them. Thank you very much Ms. Ng. Well, now, we can have our coffee break. Before you go off please proceed back to that room where we had registration this morning and have our coffee break courtesy of WIPO, thank you very much.