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[comments-wipo] Comments on the Preliminary Report of WG-A
Working Group A obviously did a lot of work on this topic, and my concerns
below in no way diminish my appreciation of that fact.
However, I am troubled that the preliminary conclusions of July 7, 1999
were confined to very specific subquestions which did not address the broader
issues of appropriateness, fairness, and overall balance -- all of which
are essential to any attempt at democratic governance of the Internet.
If ICANN were to adopt WIPO Section 3 including the commentaries of Working
Group A, it would be permitting its strong obligation to protect the
intellectual property rights of large businesses to overshadow its equally
strong obligation to protect the property of individuals and small
businesses. It would achieve this effect by having elevated domain names
to the status of trademarks.
Domain names at present are not trademarks under US or international law.
They are a locator, like an address or a phone number, and they should be
given a commensurate level of respect and protection by ICANN. They are
both free speech and private property -- as well as a limited resource.
The US Government is constrained from depriving anyone of these speech or property
rights without meeting strict due process restrictions. While private, ICANN is
acting in this instance as a government in that it is exerting absolute
control over a major channel of interstate commerce, and in so doing is
requiring individuals to waive their First and Fifth Amendment rights as a
condition of being permitted to speak and to conduct business on the
Internet. At the very least, ICANN should observe the same restraint as
the US Government, which in this case would not attempt this action without
a Constitutional amendment, specific Congressional authorization, or Senate
ratification of a treaty negotiated by the President.
Raising domain names to the status of trademarks -- and thereby imposing significant
restrictions on their use -- is something that only a government may do. Without a
national or international mandate in hand, in my opinion, ICANN should exercise
great caution before taking such a step. Moreover, it is not even necessary to
broach this legal issue at this time simply to create a uniform dispute
procedure. Doing so could well harm ICANN at this crucial stage of its
In order to ensure that ICANN's policy does not unduly burden interstate
commerce , or violate the speech and property rights of small businesses
and individuals, I respectfully urge Working Group A to request the Names Council
and the ICANN Board to acquire a legal review of the following
questions prior to issuing a formal recommendation:
a) Does the proposed administrative dispute resolution procedure require the
consent of each national government whose intellectual property laws
do not currently classify domain names as trademarks?
b) Can ICANN and WIPO request the General Assembly of the United Nations to
convene an international conference on the Law of the Internet for the purpose of drafting an international
convention on domain names that is consistent with the national laws of participating states?
c) Does anything in the existing NSI dispute procedure preclude ICANN's
adoption of that procedure until ICANN has acquired a detailed analysis of
the legal considerations associated with direct intervention in trademark law?
Submitted with thanks to the members of Working Group A.