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WIPO plays thought police (fwd)



IMHO WIPO and the UN are wrong as to much of the proposed domain name
administrative policy.  They appear to be catering to significant
political factions within the UN, and trying to create a seriously jagged
and tilted playing field.

Which city gets a proprietary claim on the word "Orange"?

If a famous person adopts an alias of "Ed Flynn" and builds economic
value for it, is Edward Flynn III banned from publicly using his 3rd
generation family name?  (real case resolved outside of court a few years
ago with respect to radio DJ's; it turned into a promotion by the station
hiring Ed III as "the real Ed Flynn", while a Merrill Lynch Media
Partners subsidiary's lawyers backed off trying to claim the alias used
by their employee)

Why protect drug INN's and not other commercial terms, if not for WHO and
select corporate friends of disproportionate influence inside the UN?

It's complicated enough trying to resolve Lanham Act style issues
internationally, where the same name may have legitimate uses not uniform
among Internet connected jurisdictions.  The current WIPO domain name
proposal makes a thought policing organization cater to select political
and business interests, in ways that might leave many people with
different concerns wondering why those select words or ideas are special,
and similar ones more important to them aren't given equivalent
treatment.


Terry
=====

WIPO Files Interim Report On Domain-Naming Policies
Source: Newsbytes
Publication date: 2001-04-16



The United Nations-backed organization that has settled the lion's share
of trademark disputes over Internet addresses has reached a major
milestone in its drive to create a comprehensive, global policy on domain
naming and intellectual property rights.

A 200-page interim report, the "Second World Intellectual Property
Organization (WIPO) Internet Domain Name Process," contains
recommendations that call for increased protection for the names of
geographic locations, of non-proprietary names of pharmaceuticals, and of
the names of international governmental outfits (like the UN itself).

The document's authors also take on the thorny issue of personal names
and Internet-domain registration, but are unable to recommend a preferred
approach to avoiding - or resolving - conflicts that can occur, usually
over the names of famous people.

In 1999, the "First WIPO Internet Domain Process" (originally called "The
Management of Internet Names and Addresses: Intellectual Property
Issues") became the foundation of the dispute-resolution rules adopted by
the internet Corporation for Assigned Names and Numbers (ICANN).

That Uniform Domain Name Dispute Resolution Policy (UDRP), launched in
December 1999, has since seen more than 2,500 decisions by international
arbitrators settle disputes over more than 4,700 domain names under the
dot-com, dot-org and dot-net domain spaces controlled by ICANN.

But WIPO's second attempt to sort out conflicts with intellectual
property rights created by the stampede to register Internet addresses
goes beyond ICANN's UDRP. In fact, WIPO says it was a number of UN-member
countries - not ICANN - that got the ball rolling on the latest report
with their request that domain name issues be examined in greater detail.


In addition, over that past year, WIPO has been playing a growing role in
settling disputes over Internet addresses registered under country-code
top-level domains (ccTLDs), such as dot-mx for Mexico. WIPO now provides
dispute resolution for 19 countries' ccTLDs, including the increasingly
popular commercialized ccTLD of Pacific- island nation Tuvalu (dot-tv).

The interim report, which is intended to inspire comments until June 8,
also takes a broader view than just resolving disputes. For example, to
protect the names of geographic locations, drugs and the world
governmental agencies, the report recommends prohibiting registrations of
such names before they occur. The report falls short of recommending a
retroactive ban on geographic place names.

And, while ICANN isn't required to officially implement WIPO
recommendations in its own UDRP, the international organization's spin on
the rights of intellectual property owners already has a major impact on
that process. More of ICANN's UDRP complaints are filed with WIPO than
with any of the three other organizations authorized to arbitrate such
cases.

"The UDRP was deliberately limited in scope," WIPO's new report says. "It
deals only with the class of disputes that concern conflicts between
domain names and trademarks and, within that class, it deals only with
deliberate, bad-faith violations of trademarks ... popularly known as
'cybersquatting.'"

However, the report says, "it became apparent in the course of the first
WIPO Process that the practice of cybersquatting went well beyond the
violation of trademark rights and encompassed the putatively unfair abuse
of other forms of identifiers."

Nonproprietary Pharmaceutical Names

Among those "identifiers" are the names of drugs that may not be
trademarks, but which, some contributors to the WIPO process said, should
be protected from domain-name registrants.

Such "international nonproprietary names" (INNs) for pharmaceuticals
include Phenobarbital, amphetamine, and ibuprofen, WIPO said. INNs are
cataloged by the World Health Organization (WHO) and currently total some
8,000, with more than a hundred being added each year.

The existence of the WHO list makes identifying INNs easy for domain-name
registration authorities, which WIPO recommends should prohibit
registration of domain names consisting of INNs in the five languages
encompassed by WHO's list (Latin, English, French, Russian and Spanish).

Furthermore, the document recommends that the prohibition on INNs as
domain names include those already registered under generic top- level
domains (gTLDs) - such as dot-com, dot-net and dot-org. The report says
that whoever registered Ibuprofen.com, for example, could "reasonably
(be) expected to have been aware of the underlying policy of the INN
system against the establishment of private rights in INNs."

It continues: "It does not seem unfair, therefore, that any policy
adopted for the implementation of the protection of INNs within the
domain name space should apply with respect to all past and future
registrations of domain names. Furthermore, the allowance of any
grandfather clauses for existing registrations would greatly undermine
the efficacy of the public policy underlying the INN system."

WIPO suggests that such a prohibition should also be part of policies for
all new gTLDs, such as ICANN's planned dot-aero, dot- biz, dot-coop,
dot-info, dot-museum, dot-name and dot-pro address spaces.

Left for further debate, however, was the question of whether the INN ban
should also apply to the national ccTLDs and whether variations on INN
domains that indicate related resources or manufacturers should be
allowed, such as Amfetamine-info.com or Glaxo-phenobarbital.com.

WIPO said that the automatic-exclusion approach to INNs would eliminate
the need to modify the trademark-oriented UDRP to settle disputes over
such domain names.

Intergovernmental Organizations

Although a dot-int gTLD already exists for international
intergovernmental organizations (IGOs), such as the UN, WHO, and WIPO
itself, "virtually all of the IGOs submitting comments indicated that
some form of protection was needed," the report says.

"A number of the comments of IGOs noted instances of abuse or other
problems in the registration of their names or acronyms, which resulted
in deception or confusion to the public. These organizations expressed
concern that unofficial Web sites using a domain name that is identical
or similar to their name or acronym may contain misleading, inaccurate or
prejudicial information about the IGO, while leading the viewer to
believe that he or she is visiting the organization's official web site."
1 The report says that the existence of the dot-int gTLD is
"insufficient" to protect the IGOs, and suggests an automatic exclusion
process for all gTLD registrations like that recommended for INN-listed
pharmaceuticals.

Geographical Domain Names

Likewise, WIPO recommends a similar ban on geographical place names in
gTLDs, but also suggests broadening the scope of the UDRP so that those
attempting to profit from registering geographical place names can be
considered "cybersquatters" without the need for those names to be
considered trademarks in the usual sense.

WIPO says it suggests that a prohibition on place names in domain should
be restricted to those reflecting the names of countries and
"administratively recognized regions and municipalities within
countries."

The WIPO report notes that a number of UDRP cases have already attempted
to grapple with the issue of geographic domains and trademark, resulting
in mixed results.

Last August, a WIPO arbitrator ruled that Barcelona.com should be taken
from it current owner and given to the city of that name, which the
arbitrator said had trademark rights to it. But that case was quickly
followed by the exact opposite decision in the case of StMoriz.com and,
more recently, over PortOfHelsinki.com.

The Barcelona.com case has made its way to a US federal court where the
owners of the address are attempting to ward off the domain transfer
through a lawsuit against the Spanish city. However, WIPO points out in
its report that a number of European courts have reached
government-friendly decisions on their own in other cases, including the
case of Saint-tropez.com in a French court and the case of Heidelberg.de
in Germany.

Personal Names As Internet Addresses

On the issue of registering personal names as addresses, the WIPO report
says there is "abundant evidence that the names of at least certain
well-known individuals have been the subject of parasitical practices in
the domain name space.

"Similar practices exist in respect of personal names, particularly those
of famous people, in various contexts in the non-virtual world," the
report says. "The Internet adds, however, a new dimension to those
practices because of the immediacy and low cost with which a domain name
registration may be obtained and because of the global presence to which
it gives rise."

But, complicating the issue is that, unlike the INN drugs or IGOs created
by treaty, what makes for a personal name is not always clear.

In the case of famous individuals, UDRP decisions - particularly those
from WIPO - have extended the concept of common law marks to famous
monikers, awarding decisions to the likes of America actress Julia
Roberts, who had never registered her name as a trademark.

In such cases, the report says, the famous name clearly has a commercial
value, making decisions easier using the trademark- dispute approach.

But, while WIPO outlines some broader remedies, such as requiring all
"personal name" registrants to show they have a personal right to a
domain, it stops short of making any recommendations, saying that more
discussion is needed on the issues.

A series of regional "consultation" session are planned for gather
additional comment on the proposals, including one in a Washington, D.C.,
Department of Commerce auditorium on May 29.

More information is at: http://wipo2.wipo.int/ .

Reported by Newsbytes.com, http://www.newsbytes.com .

17:47 CST

(20010416/Press contact: Office of Legal and Organization Affairs, WIPO,
+41-22-338-8138/WIRES ONLINE, BUSINESS, LEGAL/WORLDCOPY/PHOTO)


Publication date: 2001-04-16
) 2001, YellowBrix, Inc.



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