WIPO Final Report on Second Domain Name Process
Date: Monday September 03 2001, @05:39AM
Topic: Uniform Dispute Resolution Policy (UDRP)

dtobias writes "The World Intellectual Property Organization has released the final version of its report stemming from its second process regarding domain name policies. (The first process resulted in the UDRP now in effect.) The new report can be found here.

In the new report, WIPO recommends that all domain names that are identical to generic drug names on the International Nonproprietary Names list be cancelled upon complaint by any party and review that the name does indeed match the INN, without regard to whether such domain use is in good or bad faith. And it recommends the establishment of a dispute procedure regarding the names of international intergovernmental organizations, parallel to the UDRP, but applying to all cases "likely to create a misleading association" (no specific requirement of bad faith), and not subject to judicial review due to the immunities of intergovernmental organizations."

However, WIPO declines at this point to request the imposition of new rules regarding personal names, geographical names, or trade names, given the lack of international agreement on these things, though it suggests the possibility of starting a process to enact new laws or treaties in those regards.

Public comments were solicited earlier this year and posted in the WIPO site. I submitted my own comments to them, some of which were cited in the footnotes of the final report.

The proposed policies with regard to pharmaceutical names and intergovernmental organizations have the potential to result in unjust actions which WIPO wishes to make unreviewable in any outside court -- clearly, many sites engaging in free speech that is constitutionally protected at least in some countries might get suppressed under these policies, which don't even require a showing of bad faith as required by the UDRP.

The report also shows an extreme shortage of evidence of any actual harm caused by registrations which would be barred by these new rules -- not a single case was cited where a domain name matching a nonproprietary drug name actually caused documented consumer confusion. I see no legal or moral reason why the generic names of drugs deserve any more special protection than, say, the generic names of flowers or any other object or substance.

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Re: WIPO Final Report on Second Domain Name Proces
by michael (froomkin@lawUNSPAM.tm) on Monday September 03 2001, @06:41AM (#2137)
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For more arguments on why wipo's proposals go too far, see my comments to WIPO.

I think there are two additional points to make about this final report. First, although it's much tamer than the draft (just as the first round pulled back from the even more ambitious draft that preceded it), the precedents that WIPO proposes setting are quite radical.

I think, however, that the chances of ICANN adopting these proposals is very low for two reasons. First, the UDRP is clearly very broken, and the fight will be about how much to roll it back, not whether to expand it. The smart trademark people understand this, and have been very moderate in their demands for UDRP expansion, saving their political capital to hold what they already have. Second, to the extent that the WIPO proposals would require ICANN to cause the cancellation of existing registrations such as caffeine.com, this would represent an act of acquisition that would be a prohibited government "takings" if conducted by a federal agency. The loser of the domain name would have a case against ICANN in which s/he could argue a right to due process with a very sympathetic set of facts. ICANN isn't going to take that risk.

Having said that, once again I commend WIPO for the clarity of its writing, and for considerable honesty. WIPO admitted that there wasn't much evidence of harm to back up its claims for action. And at key points it admits that many of its suggestions would involve making new international law, and that the way to do this is through traditional processes, not ICANN.

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