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    Uniform Dispute Resolution Policy (UDRP) WIPO Intercedes For Iraq
    posted by michael on Sunday March 09 2003, @01:02PM

    jberryhill writes "That's right. WIPO wants ICANN to take away a productive asset belonging to a private company and hand it over to Saddam Hussein. In this letter to ICANN from the WIPO Center for Abitration and Mediation , WIPO director Francis Gurry writes to "inform" ICANN that WIPO has decided country names belong to whatever ruling junta is in charge of that country for the time being."



    The letter from WIPO arises from the long-dormant WIPO II process, seeking to expand the categories of domain names subjec to forcible transfer via a domain dispute proceeding. You remember WIPO II, of course. This was a travelling WIPO road show based on a "mandate" originally claimed by WIPO to have been conceived by the Australian Minister of Communications. Interestingly, the government of Australia, along with the United States, and Canada, all voted against the recommendation that ICANN de-stabilize the internet by evicting the hundreds of private businesses which use country names for such things as travel websites, news and information portals, etc.

    The problem is that WIPO revenues from domain name disputes are severely off, as the frequency of domain name disputes has taken a nosedive. To maintain revenue, WIPO needs a supply of new products. Country names are not trademarks of their resepective governments, as was dramatically demonstrated in the NewZealand.com domain dispute decision, in which the Queen of England was cited for abuse of process by the WIPO panel appointed to the case. Other threats to the same domain name registrant have been made by the government of South Africa, and by the US possession of Puerto Rico, which will most likely soon receive their losing UDRP decision in the puertorico.com domain dispute proceeding.

    While the WIPO II recommendation on country names as domain names refers to "abusive" registrations where the domain name registrant "has no right or legitimate interest in the name", anyone familiar with UDRP decisions is aware of the practice of some UDRP panelists to telescope the three-part UDRP inquiry into a single question of whether the complainant has a trademark. From there, it follows that the registration is not legitimate and was made in bad faith. It is precisely this kind of reasoning by which a domain dispute panelist recently declared that the word "sex" is not a generic word, and ordered transfer of the domain name sex.biz to a party having a trademark in "sex" for refrigerator magnets. Similarly, the intervention of a US Court was recently required to point out the absurdity of a similar NAF domain dispute decision concerning the domain name freebie.com. The WIPO recommendation clearly jeopardizes the interests of the many travel and information businesses using country names, and will subject them to what the NewZealand.com panel deemed a "needless expense" in defending the right to use a country name in connection with information and services relating to that country.

    Given the "reformed" ICANN structure, in which those outside of the hand-picked voting structure have no opportunity for input, it would not be wise for businesses utilizing country-name domain names (in any of the official languages of the UN), to sit idly by and await this threat to their livelihoods to become a reality. Unlike WIPO, ICANN is clearly subjec to the jurisdiction of US courts for the purpose of obtaining an appropriate injunction. Of course, once ICANN gets into the business of authorizing the transfer of these economic assets to the governments of Iraq, Libya, etc., then the persons responsible will also have plenty of future idle time on their hands... in prison.

     
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      Related Links  
  • UDRP
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  • NewZealand.com domain dispute decision
  • South Africa
  • ordered transfer of the domain name sex.biz
  • this letter to ICANN from the WIPO Center for Abitration and Mediation
  • More on Uniform Dispute Resolution Policy (UDRP)
  • Also by michael
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    WIPO Intercedes For Iraq | Log in/Create an Account | Top | 3 comments | Search Discussion
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    WIPO Intercedes For Chile, UK and Japan
    by vbertola on Sunday March 09 2003, @11:43PM (#11293)
    User #3435 Info | http://bertola.eu.org/
    This is a very difficult situation where there's merit for both sides - the fact that a country should have a chance to prevent inappropriate use of its name, and the fact that private non-infringing uses are possible and should not be necessarily forbidden or discontinued where already existing. (By the way, you missed to note that the WIPO letter explicitly says that no position has been taken on what to do with the existing registrations - see 8. (ii) in Annex 2 [icann.org].)

    You may remember that I was the one who, during the Public Forum at ICANN meeting in Ghana, sent an e-mail which Vint Cerf read, and which commented Stuart Lynn's initial idea that governments should have more weight in ICANN exactly by saying that you would then remove power from those people in Iraq trying to use the Internet to communicate with the rest of the world, and give it directly to the Iraqi government.

    And yet, what disturbs me in your comment is the idea that the fact that the United States forbid trade with some foreign countries which they judge as "terrorist" is enough to deny these countries the possession of domain names in global TLDs. As you can see, what the US thinks about Libya or Iraq is not necessarily shared by the rest of the world, and in fact ICANN being subject to US laws, rather than to international treaties, is one of its biggest weak points.

    So I think that discussion on this issue should not be mixed with judgements about whether this or that particular government is democratical or not. Simply reformulate your reasoning with "Chile", "United Kingdom", "Japan" or any of your favourite countries in place of Iraq, and in my opinion we'll have a more appropriate discussion.

    --vb. (Vittorio Bertola)

    [ Reply to This | Parent ]
    Don't Be Fooled
    by jberryhill on Monday March 10 2003, @07:07AM (#11296)
    User #3013 Info

    While it is true that the document is nebulous about what to do with "existing registrations", you have to be fooling yourself to believe that it is not directed to "existing registrations".

    The WIPO recommendation is for an amendment to the UDRP. The last time anyone checked, a UDRP can ONLY be filed against an "existing registration". If WIPO merely wanted to exclude country names from registration in future TLDS (cough) then WIPO would merely need to recommend that such names be unregistrable in future TLDS. This was, in fact, done in .info, which disabled a list of country names from registration just prior to roll-out (or, roll-over and play dead).

    How on earth can anyone understand a UDRP complaint to apply to anything other than an "existing registration"? I will grant you that democraticpeoplesrepublicofkorea.com is, amazingly, unregistered as of the time of this writing, but...
    [ Reply to This | Parent ]


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