Harald Tveit Alvestrand, Harald@alvestrand.no
I have been participating in the World Intellectual Property Organization's activity on domain names as a member of the "panel of experts".
My reason for participating was that I was asked by other members of the Internet Engineering Task Force to participate, more or less on behalf of the IETF.
I must say that it has been a rather educational experience,
for many parties.
Being introduced to the mindsets and preconceptions of people who
have been dealing with trademarks, their owners and their
non-owners for more than a hundred years was certainly a learning
experience for me; being introduced to people who think that six
months is a long time was probably a novelty for them.
Most of the experts were people who were rich in Internet experience in their various ways; however, only Boudewijn Nederkoorn, Ken Fockler and I were what could be called "hard-core Internet people".
The process has taken quite a while, but near the end, it
seemed to be rather rushed; the final
report was published on April 30, already delayed from its
initial plans, and WIPO reported being under "a lot of
pressure" to get the report out.
The last meeting of the panel of experts was held on March 25 and
26; at that time, only the text of RFC-3
was available. The text of the final report was shipped to the
experts chapter by chapter between April 16 and April 29, causing
some interesting comments; the annexes were never shipped to the
panel of experts at all.
Given this fast and furious endgame, I must emphasize the words of the report when talking about the role of the panel of experts:
"This Report remains nevertheless the responsibility of WIPO and does not necessarily imply that each expert subscribes to every recommendation contained in it."
I have my own reservations, as I suspect most of the panel members have. I think that a world in which the Final Report's recommendations are followed to the letter will be a better place with respect to domain rights than the one we have now; however, I also think that the world would be a still better place if some of the recommendations were changed or reversed.
However, let not the reservations below detract from my support of the main principles of the report!
There was great discussion over this issue, both in the general public and in the panel of experts.
My thought is that this is fundamentally irrelevant; as stated in the report, if someone wishes to register a domain without identifying themselves, all they need is a willing and nameable accomplice.
The consequence that should have been drawn from this is that all domain name holders must register a name and address by which they can be reached; the idea that one can force the true identity of the domain name holder to be revealed is neither reasonable nor enforceable.
To make a long story short: I support the mandatory dispute resolution procedure.
I think the value of uniformity is overrated, but having this procedure in place is much better than the one NSI has been using up to now.
The process as specified gives any party accused of or victim
of cybersquatting a farily early "day in court", at a
much more reasonable price than any normal court procedure.
The point has been made that this procedure forces people to be
subject to a process which is strange to them; my somewhat
acerbic comment is that the normal court system is already
totally alien to 95+ % of the population of any given country.
But this is what I'd call a "second attempt"; we should be ready to reevaluate the process when it's been at work for a year. "Rough consensus and running code"....
A footnote, only a footnote because I consider it to be rather obvious: The recommendation (paragraph 235) that contracts should contain a tick-mark for submission to arbitration of disputes is something I don't think will have any significant impact. It's just not useful.
My opinion of famous marks is short and to the point:
Famous marks are a dumb idea.
The idea that there exists a class of identifiers that deserve a special class of protection as intellectual property, to the degree that their protection should take precedence over all other rights, strikes me as very close to being unsupportable.
What strikes me as an even more thankless task is the decision about who gets to decide when a mark is "famous enough" or not; this is likely to be lawyer bait for years.
The legal basis of famous marks is the Paris Convention (first entered into in 1883, revised many times later) and the TRIPS Agreement. What is far less than clear in the citations made of these documents in the report is that the people working with these agreements have been unable to reach agreement on whether a single mark is globally famous or not; they have been working on it for too many years to count, and still don't know.
Apparently the argument of famousness has been used
successfully in court in some national jurisdictions; however,
this doesn't mean that the idea of "globally famous"
has ever been tested, anywhere.
Guidelines have been made (and cited in the report) - but the
date for these guidelines (March 1999) isn't exactly the greatest
encouragement that this is a stable and well-tested area.
I wouldn't be too unhappy with famous marks if I was convinced
that there are only a few of them; the damage that can be done by
a couple of hundred names you can't use is limited.
However, the WIPO report explicitly rejects any
limitation to the number of marks deemed "famous" (para
269), even though several mechanisms were proposed that would
serve to focus the expectations of the mark-holding community in
a reasonable fashion.
And the idea of a million "famous" marks, blocking their use as domain names in all open domains, and giving their owners more power to take over any domainname that even looks a bit like those names, to be honest, scares me.
These remarks are the sole responsibility and copyright Harald Tveit Alvestrand.
Reproduction in full allowed to all comers; quoting with attribution allowed under the Berne convention rules for fair usage; other usage requires author's permission.