COMMENTS on DOCUMENT RFC_3
Willis H. Ware (willis@rand.org)
Fri, 12 Mar 99 15:18:54 PST
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-- Sirs:
I submit the following comments on the document RFC_3 -- Interim Report of the WIPO Internet Domain Name Process, dated December 23, 1999.
1. I am not a lawyer but a technologist in the computer business for 50 years; I am familiar as well with the general workings of the Domain Name System, registration of domain names, with copyright law, and related matters.
2. I do not dispute that occasionally there will be a collision between a domain name and an established trademark. I do not dispute either that some individuals or business entities "play games" with the DNS process in an effort to register domains that can later be sold for profit or otherwise used for private benefit.
3. However, the scale of such abuse does not warrant the imposition of such a horrendously complex legal process as described in the draft report; and certainly it does not warrant a process that is so biased in favor of business, industry and corporations and to the disfavor of the individual.
I comment to you with an American slang expression; "If it a'in't broke, don't fix it." And in my opinion, the domain-name/trademark confrontation situation is not broken. The instances in which a registered domain collides with a trademark are sufficiently few and far between that the established processes of law are proving adequate to resolve them.
4. I fully support the comments that have already been submitted by Professor Michael Froomkin whose legal expertise has provided a very detailed critique of the draft report.
5. From my point of view, the present WIPO DNS-management effort has emerged with an enormously complex set of procedures that attempt to circumscribe every conceivable situation that might arise. Without intending to demean the efforts of the working group, I submit that the present draft report is essentially "everything for everybody" except the individual. Instead of establishing principles to guide the processes of law, the draft report tries to establish detailed rules for situations that should be properly argued before a court when and if necessary.
The draft report seeks to establish details, not principles, and I consider that to be poor legal form in general, but especially so for a situation which is not thoroughly understood, is not a pressing matter in general, and will evolve for many years.
6. I would urge WIPO to:
a. Table the present draft report as the initial analytical cut at structuring the issue and understanding its ramifications.
b. Organize one, two, three or however many are required, workshops to include all interested parties -- notably individuals, not just business entities -- and work through a thorough analysis of the issue so that it will be well understood in all of its intricacy.
c. On the basis of the workshop(s), create a new report which reflects the findings. Meanwhile, situations of domain-name/trademark conflict may have occurred, been resolved, and there will be real experience on which to base a proposal for sound progress. Use such real data in the formulation of a revised report and its processes.
Using American slang again, the issue at hand needs to be "jawboned" a great deal more before there will be adequate understanding on which to base a definitive solution.
Respectfully submitted, 12 March 1998:
Willis H. Ware Santa Monica, CA US 90402 +1 310/393-0411 +1 310/451-7760 [fax]
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