Michael Froomkin, Thank you for this! In paragraph 15.3 you write "RFC 3 proposes a mandatory online international business-to-consumer arbitration-in-all-but-name." Do you mean 'in-name-only,' or am I confused by the reliance of ADR on 'arbitral procedures'? And if 'administrative' is in distinction to 'legal' dispute resolution, does NSI claim thats what its present policy is? In para 20, "A significant part of these problems, but alas not all, could be avoided if the party invoking the WIPO-ADR were required to consent to jurisdiction in the jurisdiction where the registrant resides in the event that the registrant wished to stay or overturn the WIPO-ADR decision." This at least would avoid the effect of making some (eg country code) TLDs more attractive registries than others. (Why indeed should they be involved in the process at all?) One gets the feeling that WIPO hopes that the 'general principles' concept will bring about uniform international intellectual-property laws. As you point out ( para 22), this puts the cart before the horse with a vengeance; until such IIP law is in place, the entire ADR process will be arbitrary and unpredictable. This seems to me to be just the kind of orientation Milton Mueller commented on: > The TM lawyers' essentially static mode of thinking looks at the > domain name resource as if the current situation will never change.. with the difference being that the WIPO lawyers are casting the nominated future as already being current. Re para 86: "As noted above, requiring the registrants of personal domains, or even the sole operator of a home-based business, to make her name, telephone number, address, and perhaps other information, part of a public, searchable, database, undermines basic privacy values. This data base may someday include the name and contact details of every computer user in the world. Every collector and holder of this personal data should be required to take steps to ensure that this data is not released except when absolutely necessary." Would an anonymous remailer serve the purpose? ----------- Am I wrong, or do the Bylaws state that WIPO does not have an exclusive resolutional franchise? If thats the case, how could ICANN hold all registrars to any WIPO recommendations, even if it wanted to? And, thinking digitally, wouldnt it be practicable to have a 'hit counter' placed on a disputed site to show how many consumers actually are confused or misled by the name? Of course the registrant (but not the visitors) would be notified that the site was to be tapped (randomly?) for X length of time, but together with a comparable record of traffic at the disputants site over the same time, the court or arbitrator would at least have some real data to look at. (I accept that there may have to be an entry in the registration data as to what goods or services a *commercial -- i.e. potentially infringing -- site expects to provide.) As for 'famous names' generally, I am inclined to think that the net will make the concept useless if it isnt already. (I aim to be the first person who becomes famous by virtue of *not having a famous name - therefore it should be protected!) kerry
