[ga-udrp] WIPO2

[DPF <david@farrar.com>]

RFC3 of WIPO2 has just finished its public comment process and in the
near future WIPO will make a formal proposal to ICANN.  This should
hopefully be referred to the DNSO for an attempt to come to a
consensus on their recommendations.

I thought I'd start the ball rolling with some personal brief comments
on their key recommendations.  Some of what they have proposed is
quite good and it will be useful IMO if we can concentrate on the
parts which are overly intrusive rather than risk being seen as
opposing the whole thing.

"It is recommended the Cumulative list of INNs in Latin, English,
French, Russian and Spanish be excluded automatically from the
possibility of registration as domain names in the open gTLDs."

INNs are International Nonproprietary Names for Pharmaceutical
Substances.  I have a lot of sympathy for this recommendation as such
names are of global meaning and serve basically a public (not a
private good).  They are intended to ensure that a certain class of
identifiers would be free from appropriation through private rights
and available for public use

My preference would probably be to have an INN TLD where people know
they could go for the official information on a substance.  But this
is some way off so in the meantime I would support such exclusions.

"It is further recommended that any existing registrations of INNs as
domain names be canceled and that, following such cancellation, such
INNs be excluded from any further registration."

I have a problem with this part though.  I think a blanket seizure of
all existing names is overly harsh and that an attempt first be made
to negotiate the use of such existing names.

"It is considered that mere reliance upon the .int top-level domain
for the protection of the names and acronyms of IGOs is insufficient
and it is recommended that additional protection for those names and
acronyms be established."

I disagree strongly here.  The .int TLD was set up specifically for
IGOs and trying to protect their names in other TLDs is not needed.
WHat is the point of having specialised TLDs if they are going to
register in all other TLDs.

"It is recommended that the names of IGOs protected under the Paris
Convention and the TRIPS Agreement should be excluded from
registration in all existing open gTLDs, as well as in all new gTLDs."

Disagree again.  Education is the key about .int.  Just as people have
got to know that you go to whitehouse.gov not whitehouse.com.  People
can soon learn that OECD.int is the official OECD site not OECD.net
for example.

"Thus, a second possibility is to recommend an amended scope for the
UDRP, to encompass a new and narrow category of claims brought on the
basis of a personality right. This approach would allow those
complainants who can assert sufficient distinctiveness in their name
to take advantage of a dispute-resolution procedure in cases where
they would meet the required elements. Those elements could include: 
 - name sufficiently distinctive 
- commercial exploitation of the personal name 
- the commercial exploitation must be unauthorized; 
- Bad faith must be demonstrated
- facts that indicate an intentional effort to take advantage of the
reputation or goodwill in the personal identity of the person; and 
- The interests of freedom of speech and the press need to be taken
into account"

I think this is getting into an area where one would need the wisdom
of Solomon to work out if a name is sufficiently distinctive or not.
The commercial aspects might be easier to deal with though.

"a third alternative recommendation is to modify the scope of the UDRP
only in its application to the new TLD, .name. Introduction of a claim
on the basis of a personality right rather than a trademark, as
described above, could be applied to registrations in this TLD"

This approach IMO has more merit.  I think the advantages of
specialised TLDs is that you don't have lots and lots of exclusions or
UDRP battles over what may end up to be hundred of open generic TLDs.
Keep any issues of who has rights to a name to the *.name TLD.

"It is recommended that measures be adopted to protect geographical
indications and indications of source in the open gTLDs"

"It is recommended that the scope of the UDRP be broadened to cover
abusive registrations of geographical indications and indications of
source as domain names in all open gTLDs"

This could be a nightmare for WIPO and the UDRP.  Does the Wellington
City Council or the Wellington Regional Council have rights to
wellington.com?  How about the Wellington in the US and in the UK?

We have ccTLDs for a reason and issues of geography can be handled
within each ccTLD.  Trying to claim rights to a generic geographical
identifier is problematic.  Should Washington DC or State of
Washington claim Washington.com?

"With regard to the ISO 3166 alpha-2 code elements, it is recommended
that:

(i) a mechanism be established to exclude such elements from
registration in the new gTLDs, absent an agreement to the contrary
from the relevant authorities"

Well this has already happened.  The ICANN staff have decided for
themselves this is now a policy and included in the new TLD
agreements.  Where is the bottom up decision making on this?

(ii) the persons or entities in whose name such codes are registered
at the second level in the existing gTLDs and who accept registrations
of names under them be encouraged to take measures to render the UDRP
applicable to these registrations, as well as to registrations at
lower levels, and to ensure the proper and prompt implementation of
decisions transferring or canceling these registrations resulting from
the UDRP.

This sounds like the Aust Govt trying to stop au.com being a
competitor to com.au.


Anyway sorry this is a long post but lots of issues to consider.  

DPF
--
david@farrar.com
ICQ 29964527
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