Comment: Protection of Country Names in the Domain Name System

(i) While various country name lists other than that of the United Nations and ISO 3166-1 are current, examination reveals few differences between them. The majority follow ISO 3166-1, some with minor variations (eg Internet Assigned Numbers Authority (IANA); Universal Postal Union).

The widespread acceptance of the ISO Standard suggests its adoption is the most appropriate. However, the International Organisation for Standardisation (ISO) is itself dependent on the United Nations publication, the Terminology Bulletin No 347/Rev 1: Country Names, for authoritative input. Indeed, no new country name is included in ISO 3166-1 unless the United Nations first accepts it. (It should be noted that the United Nations list is not restricted to member states. Furthermore, it includes distinct economies, such as that of Hong Kong.)

In general, its role as primary source would make the United Nations document preferable as the arbiter for country names. Nonetheless, ISO 3166-1 may serve the purpose better, not only for its occasional choice of a more commonly used short form (eg "Hong Kong" rather than the "Hong Kong Special Administrative Region of China") but also because it is broader in scope.

While the United Nations list accounts for almost all entries in ISO 3166-1, those appearing only in the ISO-Standard consist of dependent areas whose application for inclusion was supported by the relevant national government (eg Mayotte (France), Christmas Island (Australia), Cocos (Keeling) Island (Australia), and the Isle of Man (United Kingdom)).

Physically separate dependencies concerned to seek recognition by the ISO may well need country name protection if business and tourism within their borders is not to be jeopardised. In recognition of the quasi-country status of these areas, it may be advisable to protect the dependencies' names in addition to country names. Taking ISO 3166-1 as the country name listing would facilitate this course.

(ii) Despite instances where the long form serves to differentiate (eg "Democratic Republic of the Congo" from "Congo"; "Democratic People's Republic of Korea" from "Republic of Korea"), country names in the United Nations, and hence ISO, lists are generally "their short form used in day-to-day operations of the United Nations" and not "their official name as used in formal documents". It is, of course, the short form that is the subject of most searches and, predominantly, of appropriation by persons unconnected to the country in question.

The formal names are considerably less attractive as domain names to those lacking the relevant associations, making protection of them simultaneously less controversial and less necessary. Yet a country opposed to the exploitation, commercial or otherwise, of its country name by private parties may support exclusion of both long and short forms from registration as domain names. The long forms of some country names may well be the subject of misuse and, for that reason, if protection is to be provided, it is appropriate for it to be extended to both forms.

Protection in both official languages and English would mirror that proposed for geographical and geopolitical names by the Governmental Advisory Council (GAC) of ICANN in relation to the .info Registry.

In the Internet environment, in which English remains the dominant language, protection in the domain name system (DNS) of country names in that language is essential. It would also seem appropriate to protect each country's name in its official language or languages. In view of the recent availability of registration of "multilingual", or non-ASCII script, to be effective this would need to be in both Latin characters and, if applicable, the relevant script or scripts.

The GAC has specifically stated that it is interested in protection in only the .info gTLD because of its special characteristics. However, although the most sensitive usage, where there is greater risk of speculation, hijacking and otherwise abusive use of country names, would seem to relate to .info and .com, these gTLDs are not alone in being affected. If protection were provided only in .info, it could easily be circumvented by registration in another domain, given the current state of technology and the way in which search engines are used. Accordingly, if the international community generally supported some form of protection, Australia considers it could only be effective if it applied beyond .info.

All gTLDs established or new, have the potential to become the subject of good faith but misleading registration or bad faith registration. In existing gTLDs there would be considerable difficulties in taking retrospective action against use in good faith. We therefore consider that in these gTLDs only bad faith registration could be subject to cancellation.

In future gTLDs protection against both good and bad faith registration by those unconnected with the name could be granted through the reservation of country names as part of the contractual conditions. As only one person or entity connected with the country can hold the domain name, it would seem most appropriate and equitable that the country name registration be reserved for the government in question. (See the discussion on mechanisms (below) for a means of identifying the correct government contact point.)

A similar argument applies to ccTLDs. However, as these are administered independently by nationally designated registries, each responsible for its own rules and policies, member states can determine their own position relating to the ccTLDs under their control.

The response to this question will, of course, be reflected in the choice of mechanism(s) to protect country names and the grounds, if any, for cancellation of registration.

With regard to gTLDs, domain name rights are granted on the basis of "first-come, first-served", with no pre-screening to check the applicant's good faith. This has resulted in a system which favours the residents of countries with high levels of Internet awareness, particularly of the DNS, and the ability to access the system and register domain names. This is evident in the prominence among .info applications of names of countries with little or no Internet penetration that were applied for by persons from Internet-aware countries.

The inherent inequity of the system argues against an unconditional respect for alleged acquired rights. This is particularly so when the registration demonstrates bad faith intent. There is already specific American legislation, the Anticybersquatting Consumer Protection Act, to address such instances in relation to trademarks. However, a country's name enjoys no such protection and is therefore open to abuse in the US as in other countries.

Any attempt to create a fairer system must take into account the competing expectations held by registrants of domain names, Internet users and the representatives of the various countries. Registrants have an expectation of continuity; users do not expect to be misled; and countries have a legitimate expectation that they will be able to register their name. Unfortunately, the conflict between these interests precludes a totally satisfactory balance. However, if bad faith registrations are to be cancelled, their owners have no legitimate claim for compensation.

There is scope for establishing protection in more than one way and for concurrent use of the different means. Decisions taken on mechanism(s) will be affected by the protection that is to be granted.

For the protection of country names in existing domain name systems to be effective a mechanism like the Uniform Dispute Resolution Policy (UDRP) adopted by ICANN would be required. The UDRP, promoted by member states of WIPO as providing internationally uniform and mandatory dispute resolution procedures, offers a relatively quick, low-cost remedy against bad faith, abusive registration. However, it was developed to deal with the conflict between domain names and trade marks, making it inapplicable as it stands. Nonetheless, a DRP could be developed from the UDRP without difficulty and implemented with relatively little delay. As indicated in the previous response, it could deal with bad faith registrations in existing gTLDs.

To guide the DRP panellists it would be necessary to determine a definitive list of country names. The choice of list is discussed in the response to the first question. Identifying who is responsible for providing the correct government contact for the reserved names and how such information should be communicated to the relevant domain name registration authorities may perhaps be appropriately delegated to the GAC.

For the protection of country names in future gTLDs the first step is to establish rules. ICANN could direct the relevant registries to reserve country names as a condition of contract. This would need to be done before the registration period begins to obviate the need for removal of names subsequently.

Misleading variations of country names merit similar treatment to that of the country name itself, yet the range of potential variants makes preparation of an exclusive list impossible.

This makes the reservation of misleading variations unfeasible. It is a relatively easy task for registries to confirm presence in a list of names and to check the authority of the applicant. In the absence of such a list, pre-screening becomes more complex: it may require linguistic knowledge and certainly demands more subtle decision-making skills than the clear-cut cases of official names.

For the more sophisticated task entailed in assessing whether a variation should be allowed a DRP could be the means of protection. Both the registrant and the government of the relevant country would be invited to make submissions on the admissibility of the registration. This would provide the panellist with the evidence not available to the registry but needed for a decision.

Where the registration of a misleading variation is undertaken in bad faith it could face cancellation as would such a registration of the country name.

This response reflects Australia's comments on the previous questions.