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[alac] ALAC comment on WIPO2 recommendations

  • To: touton@xxxxxxxxx
  • Subject: [alac] ALAC comment on WIPO2 recommendations
  • From: Vittorio Bertola <vb@xxxxxxxxxxxxxx>
  • Date: Mon, 12 May 2003 23:05:31 +0200


please find attached the ALAC's comments on WIPO2 recommendations to ICANN.

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<h2>ALAC Comments on WIPO 2 Recommendations to ICANN</h2>
<h3 class="western">Introduction</h3>
<p class="western">The <a href="http://alac.icann.org/";>Interim
At-Large Advisory Committee</a> thanks the Board for the <a
to comment</a> on the <a
concerning the protection of the <a
and acronyms of intergovernmental organizations</a> (IGOs) and of <a
names</a> in the DNS, communicated to ICANN by the World Intellectual
Property Organization (WIPO) on February 21, 2003.</p>
<p class="western">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 therefore provide only
a preliminary analysis of the recommendations proper (see Annex I
below), and would submit a more detailed analysis of the recommendations
if and when WIPO's recommendations are subject to policy-development
<h3 class="western">Subject Matter Concerns</h3>
<p class="western">ICANN's <a
 href="http://www.icann.org/general/bylaws.htm#I";>mission and core
values</a> 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.</p>
<p class="western">Both ICANN and WIPO have followed this principle
relatively successfully in the past, when establishing the <a
 href="http://www.icann.org/udrp/";>UDRP</a> 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.</p>
<p class="western">In the Committee?s view, two key features of the
UDRP help to keep ICANN out of a lawmaking role.</p>
<p class="western">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.</p>
<p class="western"> Second, parties dissatisfied with UDRP procedure or
rulings can obtain judicial review in an appropriate court. This helps
to ensure that the UDRP does not supersede applicable national law.</p>
<p class="western">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 (<a
Recognition of Rights and the Use of Names in the Internet Domain Name
System</a>, September 3, 2001, "WIPO Report") recognizes that there is
no basis in existing law for the special rights that the current
recommendations would implement through forced cancellation or transfer
of domain names.</p>
<p class="western">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 6<i>ter </i>of
the Paris Convention. In paragraph 168, the WIPO Report recognizes that
cancellation or transfer of domain names through an ICANN-mandated
administrative procedure:</p>
<blockquote class="western">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 6<i>ter</i> 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. </blockquote>
<p class="western"> 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 assurance that 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 an "extension of principles" of established law, as
described in the WIPO Report.</p>
<p class="western"> 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:</p>
<blockquote class="western"> 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: <br>
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. <br>
(ii) Protecting country names in the gTLDs would require or amount to
the creation of new law, a function traditionally reserved for States. <br>
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.</blockquote>
<p class="western"> Despite this clear recognition that there is no
basis in current law for recognition exclusive rights to country names,
the current WIPO recommendations propose amendment of the UDRP to
implement those "rights."</p>
<p class="western">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.</p>
<p class="western">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.</p>
<p class="western">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.</p>
<hr size="1">
<h3 class="western">Annex                       I: Preliminary Analysis of the
<p class="western">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 be possible
without leading 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.</p>
<p class="western">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.</p>
<h4 class="western">Names                               and Acronyms of 
    <p class="western">The committee notes that the WIPO Report
        disparages the .int top-level domain for its internal limitations       
because there is a general lack of public awareness of the TLD.         Rather
than reshaping the rest of the domain name system to solve      those
deficiencies, the Committee proposes that the .int TLD be       re-examined
and restructured, if necessary, as a dedicated TLD for  IGOs.   </p>
    <p class="western">The language proposed by WIPO seems to apply     to
past and future registrations. The committe notes that, given   that most
IGOs' acronyms are short, there is a high likelihood that       these might
in good-faith be used as acronyms for other entities,   and may have been
registered in good faith. The settled expectations      of existing domain
name holders should not be upset.       </p>
    <p class="western">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 Internet content. We recommend that
such disputes be left to        regular courts.</p>
    <p class="western">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       
clarification of this recommendation from WIPO.</p>
<h4 class="western">Country                             Names</h4>
    <p class="western">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.</p>
    <p class="western">Once again, it seems more appropriate for each
country to control its name (and related strings as it chooses) in its
unique ccTLD, where the matter can be addressed on a national level
according to national law, not to grant it monopoly rights in character
strings across all TLDs.</p>
<hr size="1">
<h3 class="western">Annex II: Comments received</h3>
<p class="western" align="left">The ALAC solicited public comments on a <a
version</a> of the present advice. A single comment was submitted, <a
Alexander Svensson</a>. In this comment, Mr. Svensson supports the draft
statement, and <span style="font-style: normal;">points out:</span><i>
?ICANN already had to deal with the request by its Governmental Advisory
Committee (GAC) to reserve country names under the .INFO top level
domain. Interestingly, it seems that only a small group of governments
has put the reserved domain names to use.?</i></p>

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