Interesting People mailing list archives
IP: WIPO RFC on Uniform Dispute Resolution Policy for domain names
From: Dave Farber <farber () cis upenn edu>
Date: Tue, 15 Aug 2000 07:13:35 -0400
Date: Tue, 15 Aug 2000 00:40:06 +0200From: Slobodan Markovic <twiddle () EUnet yu> Organization: www.internodium.org.yu To: ncdnhc <ncdnhc-discuss () lyris isoc org> Subject: WIPO RFC [It seems to me that drafting of the domain dispute policy is slowly becoming an exclusive privilege of the WIPO... and that ain't good. :-) --sloba] http://www.news.com/Perspectives/Column/0,176,474,00.html?st.ne.per.gif.a Agency could be coming for your domain name August 11, 2000 An international organization has proposed rules under which established Web sites could lose the right to use names with common geographical terms, such as "Bordeaux." The World Intellectual Property Organization (WIPO), an agency of the United Nations, recently opened a comment period on its proposal [http://wipo2.wipo.int/process2/rfc/rfc1/]. The current draft of the proposal suggests revoking the domain names of Web sites that conflict with "geographical terms," individuals' personal names and "tradenames." Tradenames are broader than trademarks and do not require trademark registration. The development is significant because the WIPO first proposed a domain-name dispute resolution policy in April of last year. That proposal, reduced somewhat in scope, was adopted last December by the Internet Corporation for Assigned Names and Numbers (ICANN), the Net's coordinating body. WIPO subsequently became one of four arbitration bodies approved by ICANN to arbitrate cases. The dispute-resolution policy is written with specific and targeted language. It applies only when a domain name has been used in "bad faith." ICANN defines bad faith narrowly to apply only to "cybersquatters"--those who register multiple names merely to resell them to holders of registered trademarks. Arbitrators in many cases, however, have greatly expanded the policy. Domain names have been taken from some legitimate businesses and nonprofit organizations that never attempted to resell their names. For example, a WIPO arbitration panel last April announced a decision to take Crew.com, a generic name, from a small-business owner and transfer it to J. Crew International, the sportswear manufacturer. Considering all cases decided between Jan. 1 and June 30, 2000, the WIPO transferred domain names from defendants to plaintiffs in 84 percent of all cases. A competing body, eResolution, found for the plaintiffs only 47 percent of the time. Under ICANN's rules, plaintiffs are allowed to select the arbitration body they prefer. The WIPO quickly increased its market share, receiving the majority of all cases by the second quarter of 2000. Here are the definitions of some of the factors that could cause a Web site to lose its name under WIPO's proposal: -- Geographical terms. This includes "a geographical place of origin of a product." The example the WIPO gives is "Florida oranges." But many others come to mind such as "Maryland crab," "German beer" and so forth. -- Personal names. Alternatives include applying the new rules to "all names," only the "names of famous persons," or the "names of government officials or other persons in the public eye." Perhaps as a precursor to this new policy, a WIPO decision in June transferred the domain names Montyroberts.org and Montyroberts.net to horse trainer Monty Roberts. The WIPO ordered the transfers, although Roberts acknowledged that he held no registered trademark on his name at the time. -- Tradenames. This is perhaps the broadest category. Trademarks must identify specific products or services. But tradenames "distinguish a business," according to the WIPO proposal, "independently of the goods or services that the business offers." In addition, "tradenames receive protection," the WIPO says, "without the obligation of a filing or registration." For this reason, a company you had never heard of might have a legal basis to take away your Web site's address based on the concept of tradenames. Already, arbitration cases have ranged far beyond exact matches of trademarked words. The proposed rules may create a new class of phrases that can threaten the existence of established Web sites. At this point, the WIPO is seeking comments, which must be received by Aug. 15, only on the scope of the proposal. The organization says it will publish a new draft Sept. 8, with comments on that document open until Nov. 17.
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Date: Mon, 14 Aug 2000 20:55:18 EDT Subject: Comments against scope of WIPO RFC badly needed! To: ncdnhc-discuss () lyris isoc org From: KathrynKL () aol com As you may know, I have been involved in fighting against WIPO for some time. WIPO has ** always ** wanted a much broader scope to the UDRP -- and much greater trademark and trademark-type protections. The new Request for Comment -- due August 15 -- asks for input on whether the UDRP should be expanded to include geographical terms, personal names, and tradenames. The answer should be an ** unqualified no **. Each of these expansions a) goes beyond any treaty that has been negotiated and essentially amounts to the creation of new international law by WIPO without a treaty, and b) has the tremendous potential to hurt noncommercial speech and activity on the Internet. I can offer "New York" pizza in Cairo (and in my domain name) without being any type of legal violation. I can be named "Maggie" and want a domain name and website without being the former prime minister of England. Tradenames are not generally registered, difficult to know, and could be common, ordinary words such as UNO, APPLE, or COOL. The potential for infringements of the rights of noncommercial speakers and individuals is tremendous if the UDRP is expanded into these areas. These cases belong in courts and before treaty negotiators -- this is far beyond any possible mandate for WIPO and the UDRP.l If you and/or your organization can submit brief comments to WIPO by Aug. 15 telling them that the proposed new scope of the UDRP is wrong and violates the original understanding of the UDRP as a very narrow scope -- it would certainly help. Apologies for my infrequency postings. Please feel free to write to me privately on this matter if I can help.; regards, kathy kleiman << -- Geographical terms. This includes "a geographical place of origin of a product." The example the WIPO gives is "Florida oranges." But many others come to mind such as "Maryland crab," "German beer" and so forth. -- Personal names. Alternatives include applying the new rules to "all names," only the "names of famous persons," or the "names of government officials or other persons in the public eye." -- Tradenames. This is perhaps the broadest category. Trademarks must identify specific products or services. But tradenames "distinguish a business," according to the WIPO proposal, "independently of the goods or services that the business offers." >>
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- IP: WIPO RFC on Uniform Dispute Resolution Policy for domain names Dave Farber (Aug 15)