Re: [IFWP] Re: [ga] WG A Report: Question b

[Jeff Williams <jwkckid1@ix.netcom.com>]

Bill and all,

  Many good points here BIll, and by in large [INEGroup] is in
full agreement.  We also thought that these thoughts should be
shared with fellow DNSO GA members and of course our
esteemed Congressional Commerce Committee members as well..

Bill Lovell wrote:

> At 05:30 PM 7/11/99 +0200, you wrote:
>
> So given that I am a U. S. citizen and either a trademark owner or a holder
> of a domain name, and given also that the U.S. Federal Courts have said
> repeatedly that the policies of Network Solutions "do not trump the Lanham
> Act (expressing U.S. trademark law)," upon what basis do any of you suppose
> that your proposed dispute resolution policy could override U. S. law and have
> any effect on my legal rights? What is or would be your source of authority?
> If your answer is that I would be bound by contract, two questions arise:
> (1) if I am a trademark owner not having a domain name, what contract?
> (2) if I want a domain name, and your contract requires acceptance of some
> dispute resolution policy, what if I don't want to sign it? If the answer
> is that
> I would not then get a domain name, would that not then be an unenforceable
> contract of adhesion? Put another way, since web pages are the new, cool
> way of self expression, would not such a contract requirement interfere with
> my right of expression in unconstitutional ways?
>
> Bill Lovell
>
> >This is a rport on the question-b sub-group.
> >
> >I apologize for the dealy in providing this report, but I was travelling and
> >wrongly assuming that I would be able to connect to the Net. Hotel phone
> >systems, modem adapters and ISPs decided otherwise :-/ (combined with my
> >limited technical abilities, most possibly...)
> >
> >[Please note that this report has not been reviewed by sub-group members and
> >is therefore my sole responsibility. It is provided for information pruposes
> >in order to stimulate the debate and contirubtions form those not directly
> >involved in the discussions]
> >
> >Our sub-group is dealing with the basic but nonetheless fascinanting questin
> >of whether we should have a standard dispuite resolution policy. It is basic
> >in the sense that all the rest depends on an affirmative answer to this
> >question (if not, the WIPO Final Report makes no sense at all).
> >
> >It should be noted that our discussions, as the WIPO Final Report itself, are
> >bound to gTLD and do not address in any way psossible dispute polices for the
> >so-called ccTLD or territorail TLDs (ISO-3166 TLDs).
> >
> >As "standard dispute resolution policy" could still have many differnet
> >meanings, we devided it into the follwoing five sub-questions:
> >
> >1. Do we need a uniform DRP at all?
> >
> >Assumption: we face now a world of non-uniform (differenctiated) dispute
> >resolutions mechanisms: namely, the worlwide courts and legal systems, plus
> >the current NSI DRP.
> >
> >If we are to build a DRP as an alternative to court litigation, this
> should be
> >uniform. If not, it would be a perfect waste of time and will leave us in the
> >same level of conflituality and insatisfaction that has been the commonplace
> >during the last three years.
> >
> >Comment: Indeed most participants in the WIPO process and the current DNSO
> >works fervously favour a uniform DRP, as precisely the whole discussion
> >originated largely in the absence of such uniformity, and the unsolvabvle
> >multijurisdictional conflicts that, in many cases, result in the absolute
> >absence of any available dispute resolution mechanism (ie, results in the no
> >solution solution).
> >
> >In fact recourse to Courts remain available to all parties. This is still an
> >added reason for escaping forum shopping and choice of laws hell-scenarios in
> >building the "alternative".
> >
> >It has been noted by a former member of the WIPO Panel of Experts that the
> >recourse to Courts after an Alternative Dispute Resolution decision could be
> >limited or not available in many instnaces. This arguments tells nothing to
> >those favouring a uniform DRP per se, and has failed so far to convince all
> >those wanting to keep open the recourse to Courts, but it deserves further
> >consideration, and our sub-group will pay attention to this issue.
> >
> >In sum: there is a general preference for a uniform dispute resolution
> >mechanism, with some resevations form some parties as to the implications of
> >such DRP.
> >
> >2. Does a DRP need to be gTLD-based or uniform accross gTLDs?
> >
> >Assumtpion: "unfirom" does not imply "universal". Equal things should be
> >treaten equally,; different situations desserve different treatment. At
> least,
> >uniform means unfiorm for each gTLD. At most, it means uniform accross all
> >possible gTLDs.
> >
> >Comment: The current three gTLDs (.com; .org and .net) even if intended for
> >differnetiated use in their origin, have been used in similar ways for a long
> >time. In this regards, and specially given the fact that the proosoed WIPO
> DRP
> >is limted to cybersquatting (in tis large sense) no differnetiation should be
> >applied to them.
> >
> >But if new gTLDs are to be created and some of them are specifficaly targeted
> >for not all-encompasing uses (personal gTLDs; non-commercial gTLDs...) a
> >differentiated DRP for them could be envisioned.
> >
> >3. Does a UDP imply just uniform material rules or also procedural ones?
> >
> >Assumption: Uniform in itself means not that much. At least, it means having
> >the same material, substantive rules (ie: what is cybersquatting; what are
> the
> >possible determinations etc). At most, it menas that procedural rules are
> >exaclty the same (terms; fees; rules of procedure etc).
> >
> >Comment: While the arguments for uniform substantial rules seem compelling to
> >all those in favour of this system (and taking into account that there are
> >some people who simply do not support any alternative DRP or not an uniform
> >one), the arguments for unfiorm procedural rules seem less compelling.
> >
> >4. Is a UDP compatible with multiple ADR service providers? Is a single
> ADR-SP
> >a better choice?
> >
> >Assumption: Uniform or not, DRP can be administrated by just one DRP-SP (for
> >instance: WIPO) or multiple DRP-SPs applying the same rules (for instance:
> >WIPO, ICC; UNCITRAL, AAA,-...). Either each registrar/registry chooses one
> >possible DRP-SP or there is an ICANN-approved list of UDR-SP common to all
> >registration authorities. The question then is "who makes the choice?"
> >
> >Comment: Simplicity would faovur a single DRP-SP. But agian, the argument
> >falls short of being fully  compelling. A list of competent (and
> accredited by
> >ICANN accordng to some objective criteria) could all serve the same
> policy. In
> >this case all registration authorities should recognize all DRP-SPs, and
> >include them in the registration agreements. If not, consolidation of cases
> >and cohehrence of decisions would be seriously harmed.
> >
> >Once again, some people insist that ·we already have the Courts".
> >
> >In case we finally recomned a multiple ADR-SP approach, we should provide
> >ICANN BoD with some guidance of the possible cirteria for accrediation.
> >
> >5. Should a DRP be registry-based or regsitrar-based?
> >
> >Assumption: we can achieve similar results by having a single dispute policy
> >accrosss all registrars (ie, x number of identical DRPs) or having just one
> >single DRP at the TLD level (in principle, at the registry level, but a
> single
> >registry could in principle have two separate policies if they are to run two
> >kinds of gTLDs that we might beleive desserve differnet SRPs, even if this is
> >not the case today).
> >
> >Comment: it has been reightly pointed out that it should be either TLD-based
> >or regsitrr-based, as a registry could serve vaious TLDs, and even various
> >TLDs with differnet DRPs. Indeed, if the answer to the first question is that
> >we do want a unfirorm DRP for at least each gTLD, and at this stage a uniform
> >one for the current three gTLDs, the only explanation for going the
> >registrar-based DRP way is the refusal form NSI to accept ICANN’s
> authority or
> >any directive coming form it. "Realpolitik" considerations might finally
> >impose one way or another, but they should not bind our poicy
> recomendations.
> >
> >FTLD-based does not mean that the registryt administrating the given gTLD has
> >any responsibiity in writing or administrating such policy, as it has been
> >noted that these are not functions we could wich a registry to perform. It
> >simply means that it should be unfirom form that point dowwards, and that the
> >rgistry should implement the DRP decisions in the database.
> >
> >
> >Hope this report helps, and that sub-group members find it acurate. I
> >apologize once again for the delay in providing it, which is only my fault.
> >
> >Please coment, discuss, disagree and refine. We will be monitoring the GA
> >list, but I suggest you send all coments to me so I can forward them to the
> >sub-group list and compile them.
> >
> >Best regards,
> >
> >Amadeu Abril i Abril
> >Amadeu@nominalia.com
> >
> >PS: Besides the members listed in the gernal report sent by Jonathan Cohen,
> >Keith Gymer form the Business Constituency and Marylee Jenkins from the
> >IPConst are also members.
> >

Regards,

--
Jeffrey A. Williams
Spokesman INEGroup (Over 95k members strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-447-1894
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