Re: [ga-udrp] WIPO2

["NameCritic" <watch-dog@inreach.com>]

Chris McElroy aka NameCritic

----- Original Message -----
From: "DPF" <david@farrar.com>
To: <ga-udrp@dnso.org>
Sent: Saturday, June 09, 2001 8:51 PM
Subject: [ga-udrp] WIPO2


> 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.

"Hopefully is correct. The IP Constituency will come out with a paper
suggesting it isn't necessary to revies this any further.

>
> 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.

Unless the whole thing is wrong. I don't think  limiting the scope of any
review is productive. You are right in that you have to pick battles you can
win, but so far with the UDRP, WIPO, and ICANN, that would mean choosing no
battles at all.

>
> "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."

Then what industry will claim this right next? What is to stop an industry
with this availability to name their product by more generic terms, further
limiting the use of any language's vocabulary. There could be a way to put a
clause in about that.


>
> 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

Ok. I need more explanation on this. Links anyone?

>
> 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.

Unfortunately that hasn't been a concern in the past. Siezure of domain
names isn't something they are shy about doing even when there isn't
sufficient cause.

>
> "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.

Good point.

>
> "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.

Agree here too. But with the current constituency structure and duplicate
representation for IP interests and lack of individual representation means
they will continue to seek to control all name space. TM Law outside of the
UDRP does not afford TM Holders the type of protection they have managed to
get from WIPO and ICANN. They will continue to resist quick implementation
of new tlds because then they might become related to the classes they file
TMs in. Then people would see that siezing domain names has been done for
reasons over and above current law. Their TM would only have protection in
the tld that reflects the class their TM was filed in, which is the way it
should be handled. TM law does not give TM Holders all rights to any words
phrases or marks similar to their TM. It protects the use of the words
phrases or marks in use for commerce just in the CLASS they filed for it
under. What TM Class is .com?

>
> "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.

Agreed.

>
> "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"

Yes.

>
> 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.

Again you hit the nail on the head.

>
> "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?

The most ridiculous concept of all here. Governments have no rights to
gTLDs, especially commercial ones like .com. They have ccTLDs and .gov.

>
> "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?

Yep. They already decided the issue. Now they have to find a way to create
the appearance that the public agrees. But more and more everyday they are
more openly defying the bottom up consensus they are supposed to have. They
are openly declaring war basically with other root systems. They have made
it clear they are not interested in consumer protection, privacy issues,
representation for individuals, or anything else that might stand in the way
of Project Pinky and the Brain.

>
> (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.

The corporations that pull the strings of the ICANN Puppet Regime want the
whole ball of wax. What is worse they think they have a right to do so.
After all aren't they more important? They have a lot of money. They are
well known. So why would anyone think they don't have the right to do as
they please with the Internet? This is the attitude of the IP Constituency.
They don't understand why anyone would think they don't own all the words in
the english or any other language. They simply write the notion of
individuals rights to use these words as domain names as the result of those
individuals just being uninformed. They haven't got a clue of what is really
right or wrong. If they can get a rule or a law passed it automatically
makes them right in their opinion. There are many laws and rules that are
not the equivalent of being right. The corporations we are talking about
know that to be true. They bought those laws and rules.

The debate has grown old and tired. ICANN is bought and paid for with our
money. I have absolutely no respect for the integrity of the ICANN BoD.
Those who I do have respect for have no way to change what is going on since
they will not elect more @large board members until they have finished this
phase of Project Pinky and the Brain and it's too late to change it.

Now, nothing short of government intervention is seen as a way to stop this
from happening. And due to the US Government's lack of integrity during this
whole process and in general I even doubt that will happen.



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

Yes it was a lot to consider and I apologize for the negativity, but show me
ONE Decision of any merit that ICANN formed a bottom up consensus for before
they implemented it..

>
> DPF
> --
> david@farrar.com
> ICQ 29964527
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