Re: [wg-review] [DNDEF] short quizz 9,10

[Kent Crispin <kent@songbird.com>]

On Wed, Feb 07, 2001 at 11:57:57AM -0800, Eric Dierker wrote:
> 
> 
> Is the legal structure existing, now and at the time of creation of the
> internet (I know this could be phrased as the beginning of the evolution
> of the internet) should have been left alone (no UDRP) to handle
> Internet Domain Name disputes.
> I have not seen recorded history indicating that this was ever a
> consideration within ICANN.

ICANN had no real choice about implementing the UDRP -- it was part of 
the mandate given to it by the USGov in the White Paper:

    "The U.S.  Government will seek international support to call upon
    the World Intellectual Property Organization (WIPO) to initiate a
    balanced and transparent process, which includes the participation
    of trademark holders and members of the Internet community who are
    not trademark holders, to (1) develop recommendations for a uniform
    approach to resolving trademark/domain name disputes involving
    cyberpiracy (as opposed to conflicts between trademark holders with
    legitimate competing rights), (2) recommend a process for protecting
    famous trademarks in the generic top level domains, and (3) evaluate
    the effects, based on studies conducted by independent
    organizations, such as the National Research Council of the National
    Academy of Sciences, of adding new gTLDs and related dispute
    resolution procedures on trademark and intellectual property
    holders."

and

    Further, the U.S.  Government recommends that the new corporation
    adopt policies whereby:
      
     

        1) Domain registrants pay registration fees at the time of
        registration or renewal and agree to submit infringing domain
        names to the authority of a court of law in the jurisdiction in
        which the registry, registry database, registrar, or the "A"
        root servers are located. 
            

        2) Domain name registrants would agree, at the time of
        registration or renewal, that in cases involving cyberpiracy or
        cybersquatting (as opposed to conflicts between legitimate
        competing rights holders), they would submit to and be bound by
        alternative dispute resolution systems identified by the new
        corporation for the purpose of resolving those conflicts. 
        Registries and Registrars should be required to abide by
        decisions of the ADR system. 
            

        3) Domain name registrants would agree, at the time of
        registration or renewal, to abide by processes adopted by the
        new corporation that exclude, either pro-actively or
        retroactively, certain famous trademarks from being used as
        domain names (in one or more TLDs) except by the designated
        trademark holder. 

        4) Nothing in the domain name registration agreement or in the
        operation of the new corporation should limit the rights that
        can be asserted by a domain name registrant or trademark owner
        under national laws. 

While the language is not expressed coercively, the USG did in fact call
on WIPO, and, as the say, the rest is history. 

Moreover, the demand for a UDRP actually came from end-users;  people 
tend to forget that TM owners and businesses are end-users, but they 
are, and they are the registrars biggest customers.  I should also note 
that while the attention is mostly attached to big TM owners, most TM 
owners are relatively small.

> Havn't the courts pretty much said what you have said here,
> Registry/Registrars are not to be liable for any type of infringment
> problem caused by a registration?
> 
> As a structure judgment in order to operate on the internet should
> countries be contractually obligated to honor the USG's Intellectual
> property decisions?
> (DELLKOREA comes to mind) The answer seems obviously no, but I know that
> that is a value judgment not a structure judgment.

I don't know what you mean by a "structure judgement".  I certainly
agree with the principle that US companies should have no particular 
advantage in any dispute involving a domain name, but I am very 
concerned that the US Congress doesn't share this opinion.

-- 
Kent Crispin                               "Be good, and you will be
kent@songbird.com                           lonesome." -- Mark Twain
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