[comments-wipo] Comments on the The Preliminary Report of WG-A

[Bill Lovell <wsl@cerebalaw.com>]

__________ 
There is agreement that mandatory ADR, particularly in cases of bad faith
-cybersquatting - 
is the preferred approach to dispute resolution, subject to the proviso
that an ADR decision 
would not preclude a party from seeking relief in court, and that the ADR
decision would not 
be binding on a court having jurisdiction. The new "universe" of the
Internet, with global, trans- 
national dimensions, makes it nearly impossible to expect national courts
to deal with certain 
disputes that are bound to arise. 
__________

There is much that could be said about this report, but the passage quoted
above leaps 
out at me. It is assumed that one knows what "cybersquatting" means. Is
this like 
Justice White's comment about obscenity -- "I can't define it but I know it
when I see it?"
The reference to "a court having jurisdiction" seems to recognize that
DNSO, ICANN, 
etc., do NOT have jurisdiction over trademark aspects of domain names. I
doubt that 
such acknowledgment was intended, true that it may be.

Making it "nearly impossible to expect national courts to deal with certain
disputes . . ." 
seems quite presumptuous: by what expertise does any ADR policy show that
it could 
do any better? The text goes on to acknowledge a deep and resounding
inability to 
deal with national trademark laws, so why is this process continuing?

Other than having inherited the notion from Network Solutions, what is the
rationale 
for techies to get involved in trademark law in any event? One of the
abiding features 
of the internet, which it seems to me should be protected at all costs, and
without 
regard to whatever other inconveniences may arise therefrom, is that of
full public 
access. What possible rationale can be advanced for the notion that in
order for a 
person to become an internet participant, that person must agree in advance
to give 
up certain rights that are established by the law of that person's country.
In the U.S., 
that counts as a restraint on free speech, and while governments have the
authority 
to condition the use of public facilities such as telephones and the like
upon acceptance 
of certain regulations, DNSO and ICANN certainly do not. To exact a price
consisting 
of an abandonment of a constitutional right to seek redress in the courts
as the ticket 
for entering into the internet as a domain name holder, by way of a
contract of adhesion 
through which one is forever precluded from so entering unless the contract
is signed, 
seems to me to be contrary to every universal principle of justice, and
very likely an 
actionable offense. (Just because no one has yet had the wit to properly
challenge NSI 
on its policy does not legitimatize that policy.)

In short, I see at least some of the WIPO document, and some of this
report, as 
having swallowed whole much of the "NSI common law of trademarks," in spite 
of the oft-repeated observations in U. S. Federal Court opinions that NSI
cannot 
re-write trademark law. By sheer repetition, a mindset has been established
in 
which the onus of abiding by various rules and policies is again placed on
those 
who may be perfectly innocent domain name holders, while one NEVER sees 
any provisions through which a covetous trademark owner would be called to 
account for attempting to poach on a legitimate, lawfully acquired and
lawfully 
held domain name.

The playing field would seem still to be tilted precipitously.

Bill Lovell