[wg-b] FW: plain text version of YJ Park's contribution paper to WG-B

["Michael D. Palage" <mpalage@infonetworks.com>]

The following comments are forward on behalf of YJ Park.

-----Original Message-----
From: Kilnam Chon [mailto:chon@cosmos.kaist.ac.kr]
Sent: Tuesday, May 09, 2000 10:11 PM
To: mpalage@ipwarehouse.com
Cc: kathryn Kleiman; Ramesh Kumar Nadarajah
Subject: plain text version of YJ Park's contribution paper to WG-B


The Perspective from Asia Regarding Famous Marks and New gTLDs


YJ Park
Name Council Member from Non-Commercial Constituency
May 8, 2000

Introduction

This position paper has been initiated to clarify "where developing
countries are" in the ICANN process, "Internet Policy Making Process".
Having gone through the conflicts and various voices even within the same
constituency has prompted to go back to the fundamental question such as
whether ICANN's constituency-divided structure without any further concerns
in the different Internet development economies under DNSO is right or not.

If there are gaps among different constituencies who have been situated
diversely, it is natural to witness the differences among different stages
of Internet economies in the world.

I. Developing countries' commercial interests

1. They have been under-represented in this process due to their lack of
awareness.

2. Basic position on WG-B, Famous Marks:
Famous marks should be protected within the national sovereignty rather than
world-wide rules where many of those commercial entities from developing
countries have found not much rooms for themselves.

3. Basic position on WG-C, New gTLD:
They agree to create new gTLDs where they might have more chances to secure
their cyberspaces. Since most commercial entities in the developing
countries could not be aware of its importance until recently, they would be
happy to hear this.

However, there are subtle conflicts between US commercial party and Asia
commercial party.
One of IPC Lawyer suggested the following

"I don't see why ICANN cannot define a "famous mark" for the sole purpose
of an exclusion from the domain space. For example, a famous mark could be
defined for this limited purpose as one that has been registered in at least
50 countries for at least 5 years and has had worldwide sales of at least US
1 billion dollars for each of 5 of the last 10 years. While I don't suggest
that the 5-year/10-year period and US$1 billion are the right numbers, or
that additional or alternative criteria are more appropriate, a domain name
exclusion based on such a definition of a "famous mark" strikes me as
reasonable and workable."

If this strict rule applies to the developing Internet and Intellectual
property economies, how many of companies can get included in this famous
marks category? We have to be more cautious that developed economies cannot
be always identical to Internet developed or politically developed or
intellectual property-wise developed, either.

II. Developing countries' non-commercial interests

1.They have been under-under-represented in both the national and
international level.

2. Basic position on WG-B Famous Marks:
Famous marks should not be protected. However, if these organizations are
facing which recourse to depend on for their own sakes between the external
protections, such as international organizations, ICANN and their national
sovereignty, they seek in nature the international organizations'
protection which in general more generous than that of national authority.

3. Basic position on WG-C New gTLD:
They disagree to create new gTLDs since they are poorly informed of the
development of new gTLDs.

III. Differences between Non-Commercial of Developed and Developing
Countries

1. There have been fundamental discrepancies between those two.

NORTH Non-Commercial Organizations(NNCO) have been equipped with fully ready
human-resources, well-trained lawyers, to represent their voices, enough
financial support, and strong influences in the political process

SOUTH Non-commercial Organizations(SNCO) have been struggling from lack of
human resources, depending on volunteer basis management, lack of financial
support, and impacts or controls from the governmental body.

2. Rich non-commercial organizations have had strong voices and influences
which have been associated with political liaisons within political
processes. On the other hand, most poor non-commercial organizations is mere
name itself. NO POWER, NO INFLUENCE literally they are interests group
rather than muscle-showing group.

Some countries are about to secure non-commercial organizations'
influential position in the political process. However, Asia's observation
culture is quite different from western's "STAND UP" culture, therefore
it would take far longer than the western non-commercial organizations have
achieved.

IV. The Proposals of Developed Countries' Non-Commercial Organizations

1. Famous Marks: proposal by Hans Klein

"ICANN should not introduce restrictions on the registration of new top
level domains (TLDs) based on their connection with famous names

[snip]

Property concerns should be addressed outside of ICANN.  Institutions with
relevant authority already exist for such matters: national governments.
An example of this regulation includes the Anti Cybersquatting Act of the
United States, which has been ruled to include "in rem" jurisdiction for all
domain name disputes based on the location of the registrar.  This type of
national mandate clearly supercedes regulation by a private corporation."

This would go with developing countries' commercial sectors rather than
NCOs. Therefore, I would like to suggest that this concern should be
explained somewhere in the proposal.

2. New gTLDs:Proposal by James Love

"ICANN should accept proposals for new domains specifically oriented toward
civil society.

[snip]

A "civil society TLD" model could include a chartered gTLD that specifically
hosts communications for certain kinds of non-commercial, civil society
institutions."

Its charter may specify criteria for use of its domain name that relate to
the character of the corresponding civil society group

The specific character strings of the csTLDs are not addressed here.
Specific strings can be defined by the registries proposing a new csTLD, in
consultation with the relevant civil society groups.

Given that new gTLDs are coming to the NET are factual even though there
have been silent oppositions to this, it would be more constructive on how
to implement this.

According to the proposal, the non-commercial gTLD is expected for the
registry to recommend the specific names in consultation with the relevant
civil society groups. However, if this proposal was intended to involve more
diverse opinions from all over the world, could you change this into "the
members of non-commercial organizations and other relevant groups"?

V. Concluding Remarks.

[Table] The Similarities and Differences among Four Players

                              US                        Asia
                 Commercial Non-Commercial Commercial Non-Commercial

1. New gTLD
1.1. How many
                 The less,  More &         Some       Not ready to respond
                 the better many Non-com
1.2. When to introduce
                 Slow down  asap           asap       Slow down(1)

2. Famous Marks
2.1.Range of protection
                 All gTLDs  csTLD          All gTLDs  csTLD
                            Protection should         Famous mark Protection
                            be limited (2)            should be limited
2.2. How many FM?
                 WIPO 1000  As small as    More Marks As small as
                            possible       list(3)    possible
2.3. What criteria
                 ?          ?              ?          ?(4)
3. Goverment vs International Organization
                 Either OK  Government     Government(5) International
                                                         Organization
4. Any other factor?

(1)Ironically, the concerns between the US commercial and Asia
non-commercial turned out to be the same from the totally different
perspectives; US commercial party prefers little space to manage this
conveniently on the other hand, Asia non-commercial party prefers little
space realizing that they are not ready to grab the appropriate names for
the time being.

(2) Such protection should be limited to protect the freedom of speech and
the right to criticize

(3) Asia Commercial party has been quite complicatedly positioned so far
from its definition to its position. Withstanding this contradictory
environment, those who can be listed up in the Fortune 500 international
companies are this table is dealing with. Not surprisingly, some of those
companies couldn't occupy their names due to their unpreparedness. That's
why they still want their new spaces just like US non-commercial entities
however, they prefer strong name protection as long as they are included in
the list.

(4) It has not been clarified yet.

(5) US non-commercial party and Asia commercial party have some concerns in
common such as new gTLDs should be introduced as soon as possible and their
preference for Government umbrellera rather than international organizations
'. This result has been historically related to the development of each
democracy and economic stability.

So far we have divided into the constituencies according to the commercial
or non-commercial interests in the DNSO frame. However, as soon as we get
down to the decision making processes such as new gTLD creation and famous
marks issues, within constituencies, the fact that even the same
constituency could have totally different
views and opinions on the same issue is becoming more obvious.

If we review this table, we see some similarities and discrepancies among
those four players which are newly designed by two criteria constituency and
the level of "Intellectual property" economy rather than GNP economy. i.e.
Some countries in Asia, such as Singapore or Japan they can be categorized
as one of most developed countries however, their awareness of IP or IP
protection has been as little as most developing countries in Asia.

Comparatively, in the famous marks we have more common grounds between
constituencies however in the field of new gTLDs and the authority's issues,
there are distinctive discrepancies even within the constituencies.

|(B:NCC-USA)                  (D:NCC-ASIA)
|
|
|
|                                 <E>
|
|
|
|(A:Commercial-USA)                (C:Commercial-ASIA)
|______________________________________________
USA(Developed)            a              ASIA(Developing)
[Diagram] : The different four players in the ICANN process

If we look at the diagram above, so far the ICANN process has been led by
mainly by A in the middle of B's counterbalance effort. There has been not
enough voices of C and D in this process yet. The equilibrium point such as
"E" should be reached unless the ICANN is possessed by those two entities,
US commercial and non-commercial ones.

This paper is using US as one of representative model for the Internet
developed  economies and Asia as one of representative model for the
Internet developing economies. This can be expanded into the other regions
and more detailed statistics are expected to come out soon.