Some background and suggestions
I'll cover below three topics: 1. Proposals made in 2004 2. Some aspects of the arbitration mechanism that has been proposed 3. Some ideas for a way forward 1. Proposals made in 2004 ------------------------- As I mentioned before, much of the current discussion seems similar to me to the discussions that we had back in 2004. At the web site referenced below, there is a document titled "Part I": it summarizes the 2004 discussions. many of the arguments made back then are similar to those made today, see: http://archive.icann.org/en/committees/JWGW2/final-report/ For convenience, I have extracted from that document a concrete proposal that was made back then and I attach it as a PDF file. That proposal did not get consensus, or even majority support, and it went further than the scope of the current discussions because it included protection of geographic names (in addition to IGO names and acronyms). So it is not of current interest per se, but it might give some ideas regarding how to move forward. 2. Some aspects of the arbitration mechanism that has been proposed ------------------------------------------------------------------- It is important to understand that the institution administering an arbitration (e.g. WIPO) does not have any role regarding the decisions made by the arbitrators. The arbitrators are not employees of the institution: they are independent professionals who are named to hear a dispute. Further, the choice of the arbitration institution could be left up to the non-IGO party in a domain name dispute: indeed that was what was proposed back in 2004, see page 3 of the attached extract of the 2004 report. In the case of a UDRP-like mechanism, the arbitrators would hear the case de novo, just as would a national court, and they would not give any deference to the UDRP decision. Finally, it is worth noting that an arbitration clause in a contract between a private party and an IGO typically protects the private party, because it ensures that the IGO will not invoke immunity, as it might if the private party took the IGO to court in a national jurisdiction. 3. Some ideas for a way forward ------------------------------- As I understand the situation, at present IGOs do not agree to the current mutual jurisdiction clause in the UDRP, and there is significant opposition to the proposal to create a UDRP-like process that would force non-IGO's to agree to an arbitration clause. Unless there is a change in those positions, it might be better to explore the option of making it easier for IGO's to file a complaint through an assignee. I attach a second file (the Word file) which gives some ideas of what such a mechanism might be. That Word file does not contain an actual proposal, it is just strawman language that might be helpful in triggering further discussions that might (or might not) lead to consensus. Best, Richard Attachment:
JWGW2-final-report-part-1-extract.pdf Attachment:
IGO policy thoughts.doc |