browse comments: WIPO RFC-3

WIPO RFC-3
msondow@iciiu.org
Mon, 8 Mar 1999 14:38:33 -0500

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ICIIU Comments on RFC-3

While recognizing the need for fair, coherent, and balanced measures to limit unfair exploitation of domain names that might cause injury to trademark holders, we believe that the WIPO recommendations as embodied in RFC-3 go far beyond any such fair measures and are inimical to the continued use and expansion of the Internet as a medium of free enterprise and free trade.

If enacted, the measures in RFC-3 will severely curtail the willingness and ability of entrepreneurs and incipient businesses to register domain names, essential for having a presence on the World Wide Web and promoting their business. None but already-large businesses are able to afford the costs of the unpredictable and contentious arbitration proposed in RFC-3, and requiring that a domain name registrant accept it through a contract of adhesion will have the effect of impeding many would-be registrants from signing such an agreement - since the registrant would thereby be putting his or her business a priori in escrow to the arbitration authority, in this case the WIPO - or of making the registration so precarious as to obstruct and block investment in and capital development of the new enterprise registering the name.

It is furthermore unfair and unconstitutional to recognize and provide for the rights of third parties in potential commercial disputes while not recognizing the primary rights of freedom of speech and freedom of use to the first party, the domain name registrant, who, by investing in a domain name and Web presence and thereby creating new enterprise
is the prime mover of the Internet, with all the great boon to our economy that this has meant and must continue to mean for the future of our country.

Not only large and established enterprises use domain names and need protection for those names but also, and perhaps even more importantly for the continued expansion of world trade, the small and newer enterprises that are set up to compete with the larger ones and that force them to be competitive. Yet, under the rules set out in RFC-3, an advantage is given the established larger and wealthier enterprises, to the detriment of the smaller and newer ones. Just the opposite is needed in order to keep a level playing field and preserve free trade and compeititon, because the larger and wealthier enterprises can afford to make use of the legal structures that already exist to deprive smaller ones of their use of names. We see this occurring everywhere, for example in the present Porsche case, in which the automobile manufacturer is claiming not only those domain names that were registered in order to be resold but those that are legitimately held by independent servicers and vendors, so that the manufacturer
is attempting, through a monopoly use of the name of its product, to control world-wide free trade in parts and services. The Internet must not, through an unfair and ill-thought-out restriction on domain name usage, be allowed to thus become a tool of cartellization, monopoly control, and the formation of trade-constraining trusts.

Domain names are also registered and used by many individuals and not-for-profit organizations for purposes whose cultural and educational value may be even more useful to our society in the long term than commercial ones, and these domain name holders must be protected from the curtailment or destruction of their important activities by unscrupulous commercial enterprises who might want to avail themselves of their domain names, which the recommendations in RFC-3 abet without giving any protection to the non-commercial and legitimate name holder.

We therefore ask WIPO to reconsider the ill-thought-out recommendations contained in RFC-3 and to consult further with all the users of the Internet and not only trademark holders and big business, which has not been done so far, and to formulate, in conjunction with all the users of the Internet, a policy for domain name dispute resoution that will not infringe on the rights of domain name holders, nor give unfair advantage to trademark holders, nor restrict the registration of new domain names, nor cause the inhibition of investment in new Internet commerce.

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International Congress of Independent Internet Users (ICIIU)
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