[comments-wipo] Wampumpeag.org Comments on WG-B Work Product

[Eric Brunner <brunner@world.std.com>]

17 April, 2000

Michael Palage
Chair, Working Group B/Registrars Constituency Secretariat
Domain Name Supporting Organization
Internet Corporation for Assigned Names and Numbers

Michael,

On behalf of the NAA Registry proposants I have the honor to respond in
the limited time available concerning the work product of WG-B. 



At no point during the past nine months has the doctrine of "famous marks"
acquired a definition sufficiently specific to list any but isolated marks
as examples. No list of "famous marks" appears to exist in usable form or
is offered in reference to support a claim that the better portion of the
time WG-B has spent hasn't been an existential rathole.

The point of asserting the supremacy of a doctrine, even one which is not
resistant to definition, over all forms of meaning associated with the DNS
except disjoint territorial jurisdictions is interesting. More interesting
is that the doctrine appealed to, a property right, exists and is capable
of definition within territorial jurisdictions.

The banal construction of such a novel assertion is that Network Solutions
has managed to entice the doctrinaire to defend NSI's monopoly in the DNS
registry backend business. The more interesting one is that a new body of
International Law is being birthed, unfortunately by what appears to be a
Confederacy of Dunces.

Neither the Paris Convention nor the TRIPS agreement envision establishment
of mechanisms which make reference to a legal doctrine having no existence
external to themselves, yet make no reference to the substantive definition
of the scope of the doctrine they contain, or is nacent within them.

No list, Treaty Instruments abandoned, unnecessary supra-jurisdictional
regulatory urges. This is less than the ICANN VI-B(3)(b)(7) Constituency
requires to establish mechanisms for issues other than DNS labels viewed
as "trademarks".

The current ICANN VI-B(3)(b)(7) Constituency began its tenure by ruling it
had no duty to accept, or state the criteria for rejecting, an Indigenous
Intellectual Property body for membership. This places ICANN's tax status
in the United States in play. Over the past nine months it has spent all
of its political capital on trademarks, and no longer can initiate policy
making process for patent and copyright. It is as if the on-line world and
the leading jurisdictions -- the NAFTA, EU and MITI policy makers, decided
that all there really is no content, no innovations, to the New Economy,
just a global Ponzi scheme in brands.

This is a weak rung in the ladder ICANN must climb to become the "new
corporation", and it is not the case that the on-line world and policy
communities have lost sight of the importance of PKI, of Privacy, of
digital watermarks, of technical innovation -- of trafficing in more than
just names.

The position suggested by Harald Tveit Alvestrand (Maxware, Norway) is one
we think prudent at this point in ICANN's limited institutional life, and the
broader problem of commerce and WIPO left with WIPO.

We close with a statement made by Woodrow Wilson, President of the United
States, in 1907 on the central issue of trade, law and power:

	Since trade ignores national boundaries and the manufacturer
	insists on having the world as a market, the flag of his nation
	must follow him, and the doors of the nations which are closed
	against him must be battered down.

	Concessions obtained by financiers must be safeguarded by
	ministers of state, even if the sovereignty of unwilling nations
	be outraged in the process.

ICANN's current ICANN VI-B(3)(b)(7) Constituency, the authors of its current
incapacity to act on its mandate, both that of the US Department of Commerce
and that of the Internet's user communities, have made President Wilson's
American Triumphalism their own -- the Net is Property, and none of it is
Indigenous, and increasingly none of it looks even worth having at all.

In conclusion, the Alvestrand proposal is the only one which interests us
as the proponents of a TLD and of TLDs organized around similar principles.

If it is any consolation, it hasn't been an easy nine months in WG-C either.

Eric Brunner
Coordinator, Indigenous Intellectual Property Constituency
http://www.world.std.com/~iipc/our-iipc.html
Coordinator, North American Aboriginal Registry
http://www.dnso.org/dnso/notes/19991023.NCwgc-report.html#Position Paper E
CTO, Wampumpeag