[wg-b] RE: (wg-b) RE: (wg-b) Issues to Consider

["DEUTSCH, SARAH B." <SARAH.B.DEUTSCH@bellatlantic.com>]

     See responses below


______________________________ Reply Separator
_________________________________
Subject: (wg-b) RE: (wg-b) Issues to Consider
Author:  "Milton Mueller" <SMTP:mueller@syr.edu> at GCOHUB
Date:    9/22/99 5:08 PM


DEUTSCH, SARAH B. wrote:
     
>      The starting point, to which we all should give the greatest 
>      deference, is WIPO's Final Report.
     
We are well beyond the WIPO report in our deliberations and it is
unrealistic to
think that the many interests now represented in ICANN will consider its 
recommendations definitive. In Berlin, ICANN's Board explicitly refused to
adopt
the WIPO recommendations as a whole and referred the matter to its DNSO. The

ICANN DNSO and Working Group process, despite its many flaws, is intended to

provide representation for Internet users as a whole.  While some may wish
to 
entirely trash the WIPO report -- it is unrealistic to think that we can
arrive 
a consensus by ignoring WIPO's very valuable findings.  Your argument about 
representing "Internet users as a whole" is flawed.  We are trying to
protect 
Internet users as a whole by preventing consumer fraud and confusion -- only
for
a subset of famous marks in the new gTLDs. 
     
The WIPO Final Report was a product of an organization devoted exclusively
to IP
rights and beholden to a constituency entirely composed of IP holders. We
should
view WIPO's report as an expression of the IP view of the world, nothing
more. 
There are many other interests at stake, and now it is their turn to dispose
of 
the WIPO proposals as they see fit.  The WIPO panel of experts was comprised
of 
representatives from not only the IP world, but Internet, technical and
academic
communities.  The "other interests at stake" actively participated in that 
process, including submitting testimony and comments.  In that process, the 
majority of participants supported protections for famous marks.  Within the

DNSO process, TM and IP holders have, if anything, disproportionate 
representation.  Many will disagree on this point.
     
>      No, the exclusion process isn't a perfect remedy.  However, it does 
>      help famous trademark holders protect their "essential" marks from 
>      being preemptively grabbed up as new gTLDs open up.
     
So does a UDRP. The proposed UDRP draft is not acceptable to my company and
I 
suspect most others in the trademark community.  Even if the multiple flaws
are 
ultimately fixed, it is an additional remedy -- not the sole remedy for
every 
trademark problem that may arise on the Internet. The issue we are debating
now 
is: what does an exclusion process add that is not already granted by a
UDRP? 
The flaws and problems inherent in an exclusion process have been
extensively 
discussed on this list. You might want to address those arguments if you
expect 
to move the discussion back to the original WIPO recommendations.  Your tone
is 
unprofessional here.  Although you may perceive that the discussion is
"moving 
back" the fact is that large portions of the trademark community have just 
joined the group and are now weighing in.  I recommend we move forward in a 
constructive manner.