[alac] [fwd] ALAC posts draft comments on WIPO2. (from: roessler@does-not-exist.org)

[Thomas Roessler <roessler-mobile@xxxxxxxxxxxxxxxxxx>]

This just went to the GNSO Council.
-- 
Thomas Roessler                 <roessler-mobile@xxxxxxxxxxxxxxxxxx>




----- Forwarded message from Thomas Roessler <roessler@xxxxxxxxxxxxxxxxxx> -----

From: Thomas Roessler <roessler@xxxxxxxxxxxxxxxxxx>
To: council@xxxxxxxx
Date: Wed, 30 Apr 2003 22:04:16 +0200
Subject: ALAC posts draft comments on WIPO2.
Reply-To: roessler-mobile@xxxxxxxxxxxxxxxxxx
Mail-Followup-To: council@xxxxxxxx

A draft of the ALAC's planned comments on the WIPO2 recommendations
has been posted for public comment at
<http://alac.icann.org/drafts/draft-wipo-29apr03.htm>.

Comments will be archived at <http://forum.icann.org/alac-forum/wipo/>.

For your convenience, a plain-text version of the draft is included
with this message.

Regards,
-- 
Thomas Roessler                         <roessler@xxxxxxxxxxxxxxxxxx>





          ALAC Statement on WIPO Recommendations Regarding
                       IGOs and Country Names

                            29 April 2003


                            Introduction

The Interim At-Large Advisory Committee thanks the Board for the
opportunity to comment on the recommendations concerning the protection
of the names and acronyms of intergovernmental organizations (IGOs)
and of country names in the DNS, communicated to ICANN by the World
Intellectual Property Organization (WIPO) on February 21, 2003.

The present comments focus on the ALAC's basic concerns with the subject
matter of these recommendations, which appears to be out of scope of
ICANN's limited mission. We would submit a more detailed analysis of the
recommendations proper if and when WIPO's recommendations are subject
to policy-development processes.


                       Subject Matter Concerns

ICANN's mission and core values have a clear focus on the organization's
technical coordination function -- ICANN is clearly not intended to be
an international law-making body. Rather, ICANN acts within a framework
of national and international laws. It serves to provide architectural
support for existing laws, not to make new laws.

Both ICANN and WIPO have followed this principle relatively successfully
in the past, when establishing the UDRP as an inexpensive method to
address the bad faith registration of others' trademarks as domain names,
while deferring to the courts in situations in which several parties
may have legitimate claims to a domain name. Underlying the UDRP is a
body of law which is reasonably uniform, internationally.

In the Committee's view, two key features of the UDRP help to keep ICANN
out of any lawmaking role.

First, the UDRP addresses only situations where a complainant has rights
under existing trademark laws. Decisions are specifically required to
be made in accordance with the rules and principles of law that the
panel finds applicable. The UDRP implements existing law which has been
developed by well-established governmental law-making mechanisms. It
does not create new trademark law.

Second, parties dissatisfied with UDRP rulings can obtain judicial review
in an appropriate court. This helps to ensure that the UDRP does not
supersede applicable national law.

The Committee is concerned to observe that WIPO's recommendations on
the protection of the names of IGOs and countries seem to contemplate
creation of rights in names without support in existing law. Indeed,
WIPO's September 2001 Report of the Second WIPO Internet Domain Name
Process (The Recognition of Rights and the Use of Names in the Internet
Domain Name System, September 3, 2001, "WIPO Report") recognizes that
there is no basis in existing law for the rights in domain names that
the current recommendations seek to have implemented through forced
cancellation or transfer of domain names.

In the case of the WIPO recommendations on IGOs, paragraph 138 of the
WIPO Report describes the limited nature of rights of IGOs in their
names and abbreviations under Article 6ter of the Paris Convention. In
paragraph 168, the WIPO Report recognizes that cancellation or transfer
of domain names through an ICANN-mandated administrative procedure:

    would involve, at least in cases not involving the use of domain
    names as trademarks, the creation of new international law. It would
    represent an extension of the principles in Article 6ter of the Paris
    Convention, the Trademark Law Treaty and the TRIPS Agreement. While
    it is believed that such an extension is desirable, it would require
    a legitimate source in international law. It would be for States to
    determine the appropriate basis for such an extension of law, either
    in the form of a resolution of a competent treaty organ, a memorandum
    of understanding duly accepted by national authorities or a treaty.

Despite these observations, WIPO has now transmitted recommendations
calling for creation of a mandatory administrative procedure, disregarding
existing law's limitations on rights in IGO names and abbreviations. The
recommendations would also remove the current UDRP's assurancethat
existing legal principles will be observed. Instead, the recommendations
replace the right to review in a national court applying national law
with only a binding arbitration mechanism applying the "extension of
principles" of established law, as described in the WIPO Report.

In the case of the WIPO recommendations on country names, the WIPO Report
is even more direct about the lack of basis in existing law. It states
in paragraphs 286 and 287:

    286. . . . Rather than expressing agreement or disagreement with
    this position [favoring exclusive rights in country names], we draw
    attention to the following fundamental characteristics of the debate,
    as they have emerged from the Second WIPO Process:

    (i) The question of the appropriateness of the registration of country
    names in the gTLDs is inextricably linked by some governments to
    what they perceive to be their national sovereign interest.

    (ii) Protecting country names in the gTLDs would require or amount to
    the creation of new law, a function traditionally reserved for States.

    287. Both points lead us to conclude that we have reached the limits
    of what can be achieved legitimately through consultation processes,
    such as the WIPO Internet Domain Name Processes or any similar ICANN
    processes. In other words, we agree with those commentators who
    are of the view that this particular question is more appropriately
    dealt with by governments.

Despite this clear recognition that there is no basis in current law
for recognition of exclusive rights to country names, the current WIPO
recommendations propose amendment of the UDRP to implement those "rights."

We believe that it would be inappropriate for ICANN to assume the role of
an international legislator, and to try to establish such new law through
its contracts and policy processes. For this reason, any policy-making
processes which are based upon WIPO's recommendations in the areas of
the protection of IGOs' and countries' names must pay close attention
to staying within the confines of supporting existing, internationally
uniform law.

In view of these new difficulties -- which are less evident in the
trademark-centric review of the UDRP currently underway -- the Committee
supports the GNSO Council's recommendation to separate the UDRP's review
from discussions about implementation of WIPO's recommendations, and to
address the additional WIPO requests in a separate policy-making process.

The Committee also recommends to the Board that any separate policy-making
process begin with a careful review of the legal basis for rights that
are proposed to be created or implemented. The September 2001 WIPO Report
strongly indicates that the current WIPO recommendations propose to
implement "rights" that are not supported by existing law. The Board,
in common with other ICANN bodies, has a responsibility to take care
that ICANN adhere to its limited mission. The Committee urges the Board
to ensure that ICANN's policy development proceed only where there is a
solid legal foundation and a full understanding of the limits of existing
legal consensus.


         Annex: Preliminary Analysis of the Recommendations

We note that a more precise analysis will be necessary for a
final assessment of the extent to which an implementation of WIPO's
recommendations would indeed amount to the creation of new international
law. We do not provide that analysis in this document, but will focus
on a number of remarks on the merits of the individual recommendations.

We would ask in the first instance whether there is any real problem of
mis-registration of names of IGOs and Countries, or whether perceived
problems can be solved without new ICANN intervention, for example through
use of the existing restricted .int TLD and countries' own ccTLDs. Where
such a minimally disruptive alternative is available, that should be
examined thoroughly before more extensive regulation is proposed.

Names and Acronyms of IGOs

* The committee notes that the WIPO Report disparages the .int
  top-level domain for its internal limitations and lack of public
  awareness. Rather than reshaping the rest of the domain name
  system to solve those deficiencies, the Committee proposes that
  the .int TLD should be re-examined as a dedicated TLD for IGOs.
  The language proposed by WIPO seems to apply to past and future
  registrations.

* The committee notes that, given that most IGOs' acronyms are
  short, there is a high likelihood that these might be used as
  good-faith acronyms for other entities, and may have been
  registered in good faith. The settled expectations of existing
  domain name holders should not be upset. 
  
* Recommendation 1.A suggests a complaint system based on
  "registration or use" of a domain name which need to be of a
  certain "nature" in order to justify a complaint. This wording,
  and the subjectivity of the determination it entails, bears a
  considerable risk of extending policy-based dispute resolution
  mechanisms to areas touching upon the regulation of net content.
  We recommend that such disputes be left to regular courts. 
  
* Recommendation 1.B's wording is rather comprehensive -- as
  presented, this recommendation would not be limited to IGOs' names
  and acronyms as registered according to Paris Convention art.
  6ter, but may cover any names and acronyms covered by any
  international contract. The right to complain would be given to
  any IGO. This recommendation may be misread as an attempt to use
  ICANN policies as an instrument for the enforcement of arbitrary
  international contracts. The Committee suggests that ICANN should
  seek clarification of this recommendation from WIPO.

Country Names

* The language on country names once again relies upon criteria
  applied to the "registration or use" of domain names. The same
  concerns as above apply.
    
* Once again, it seems more appropriate to give each country control
  of its name (and any other character strings it chooses) in its
  unique ccTLD, not to grant it monopoly rights in strings across
  all TLDs.



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