[wg-b] RE: (wg-b) Issues to Consider

[Milton Mueller <mueller@syr.edu>]

DEUTSCH, SARAH B. wrote:

>      The starting point, to which we all should give the greatest
>      deference, is WIPO's Final Report.

We are well beyond the WIPO report in our deliberations and it is unrealistic to
think that the many interests now represented in ICANN will consider its
recommendations definitive. In Berlin, ICANN's Board explicitly refused to adopt
the WIPO recommendations as a whole and referred the matter to its DNSO. The
ICANN DNSO and Working Group process, despite its many flaws, is intended to
provide representation for Internet users as a whole.

The WIPO Final Report was a product of an organization devoted exclusively to IP
rights and beholden to a constituency entirely composed of IP holders. We should
view WIPO's report as an expression of the IP view of the world, nothing more.
There are many other interests at stake, and now it is their turn to dispose of
the WIPO proposals as they see fit. Within the DNSO process, TM and IP holders
have, if anything, disproportionate representation.

>      No, the exclusion process isn't a perfect remedy.  However, it does
>      help famous trademark holders protect their "essential" marks from
>      being preemptively grabbed up as new gTLDs open up.

So does a UDRP. The issue we are debating now is: what does an exclusion process
add that is not already granted by a UDRP? The flaws and problems inherent in an
exclusion process have been extensively discussed on this list. You might want
to address those arguments if you expect to move the discussion back to the
original WIPO recommendations.