You mean to tell me, there's a person who speaks clearly and
concisely, who hasnt succumbed to quackery and politicking, who
knows the problems -- and comes through with fair answers?
She gets my vote for the Board, regardless of the constituencies.
kerry
==================
wipo2.wipo.int/process/eng/dc2-transcript1.html
[somewhat reformatted]
...My name is Kathryn Kleiman and I am the Co-Founder and
General Counsel of the Domain Name Rights Coalition. I am also a
trademark and telecommunications attorney with a practice I call
Internet Matters. [...]
My purpose here is very straightforward. I have got three things I
want to do. To review the problems we are trying to solve, to see if
your Interim Report solves them and if not, to see how we can
solve the problem together. First, what are the problems we are
trying to solve. I have some sense of what these are. I have been
working on domain name issues since 1995, I attended the
September 1997 Consultative Meeting of WIPO in Geneva, I served
on the 1996 U.S. State Department Working Group on Domain
Names and testified before the U.S. Congress in 1998. I know what
the problems are, we all do. A few people are registering a lot of
domain names, let’s call them cybersquatters. And a few large
companies are seeking to protect a lot of brand names and need a
fast and inexpensive way to challenge those, challenge domain
names as a number of registries and registrars grows and
expands. Let's call this group large trademark owners. These are
your problems. But there is also one more. And that's the mandate
and concern that you not hurt the amazing thing that we know as
the Internet. The Internet is an online world in which everyone's
communication converges, large and small, individual, not for profit,
commercial or non commercial. Domain names are the way
individuals, small businesses, large businesses and organizations,
and I will throw in ISPs since I work with them all the time, of all
sizes label their space in the Internet and label their speech. You
must assure that everyone in this group continues to have access
to domain names and a stable and secure way of ensuring access
to their sites, which are book-marked and linked and known
worldwide. Sometimes even without multi-million dollar marketing
budgets.
So, does your Interim Report solve these typical but critical
problems? Cybersquatters. I have looked in vain for a definition of
cybersquatters. I thought this would be your first priority, a clear,
narrow definition of those people who make their business in
buying and selling domain names with no added value. And we
need you to make this your top priority, so that we can separate
the shark from the weak. So, that we can separate the prince.com,
the software and high-tech consulting company in Britain, from
Prince Tennis Rackets, the trademark holder in the United States.
They are both legitimate businesses with legitimate rights to the
Prince name, using Prince for legitimate reason. The British courts
told this as much when they allowed the non-trademark owning
Prince to keep the domain name.
Where are your lines, where are your definitions, where have you
clearly separated the token from the Prince? And, let's look at
large trademark owners, have you made large trademark owners
happy? Not really from what I hear. And I have been listening. They
are unhappy for many reasons. But among them is included that
this is not a global system, that it can't be imposed on all registries
and registrars regardless of what country, that it is not
comprehensive enough, that it does not reach enough intellectual
property rights. They don't seem to be totally happy.
And now have you done harm? Are there small businesses,
individuals, organizations that flourish today on the Internet that will
be hurt by what you propose? I think you have heard that very
eloquently from the people that came here today. We believe there
are, we believe you have thrown the baby out with the bath water.
Professor Froomkin has so eloquently laid out many, many of the
concerns and I would like to urge you Mr. Gurry to put a link on
your website to Mr. Froomkin's critique .................. because I
think people should be able to find it.
And you will read in my written comments on Friday you know
most of my critics and concerns. But I will just point to a few of
them kind of in passing. One, is that you ask me as a small
business and domain name owner, and I have mentioned this in
talking with Ms. Anthony, just to mention the jurisdiction wherever
the registrar or registry is located, which could potentially be in an
entirely different country and different language. And you ask me to
pay the full cost of arbitration, potentially pay the full cost of
arbitration if I lose, even if in good faith I believe the words I was
using in my domain name were being used in a generic way, as
one example. Also, you ask me as an Internet attorney to sign an
affidavit stating that I know that I don't believe in good faith of the
registration of my domain name does not interfere or infringe the
intellectual property rights of another party. Oh! my, you know this
is a grey area of law. You don't even know, courts don't even know
whether legal rights are
infringed or diluted, particularly involving Internet issues, until they
sit down and carefully weigh and evaluate the case of the rights
that are being infringed with those specific issues before them.
Some day someone is going to hold me to that. And they are going
to say, didn't you know there were other Kleiman's out there? Didn't
you know there were other people using Internet Matters? I mean,
you have asked me to sign an affidavit that is essentially
unanswerable, particularly by anyone who knows that legal rights
on the Internet is a grey area and an area in formation.
You also ask me as a public interest attorney to accept guiding
principles. In paragraph 99 in kind of in the spirit of the document
throughout that essentially freeze court decisions and domain
name trademark conflicts in early 1997. These principles claim to
be based on a review of the cases that have been cited in national
courts. But, you fail to include, and this is by no means
comprehensive, the fact that Canadian and U.S. courts have found
that a domain name registration in and of itself is not a trademark
infringement. You also fail to include cases that say that
registration of CDs.com, that a registration can be generic, even if
there is a trademark out there for the same word. It can be a
generic and perfectly appropriate use.
As I said, you will find most of this in my written comments and we
have heard a lot of it today. So, let's talk about the real issue,
which is HOW DO WE SOLVE THE PROBLEM TOGETHER. We
need to stop cybersquatters and we need to give large trademark
owners access to an avenue of appeal while preserving the rights of
everybody else. And also, if possible, we need to preserve the
procedural and substantive rights of certain laws. You know, I don't
think this is an impossible problem. It is a hard task, I don't think it
is an impossible problem. And I think the solution lies almost
entirely in Process. I don't believe we need any new laws or any
new guiding principles. Intellectual property laws, free speech laws
and the United Nations Declaration of Human Rights treaties work
well and they operate and courts today are making good decisions.
That leaves as the real problem issues of speed and cost. Speed,
because trials aren't just fast enough and cost because trials are
too expensive. And this is a place where we all agree. I think we
would all agree, domain name owners and trademark owners.
Speed and costs and this is where we need your help. What can
WIPO do to solve the problems of speed and cost? Mr. Gurry
knows and Mr. Gibson because they are already doing it. They are
taking the lead in developing an online form that can be used for
domain name trademark disputes. They have within their power and
they are doing it to create a model for other online forms. You can
set the standard and I believe you are well on your way to doing it,
other people will follow.
What else can we do to keep the costs low and the speed high?
What we can do is to keep the issues limited, focused and narrow.
And here is how we do it. First, the dispute forms must have
limited jurisdiction. Only look at domain name trademark issues,
not copyright, not rights of personality and not anything else, just
trademark. Second, the dispute forms must have a varied, limited
remedy, keeping or revoking the domain name. Not damages, not
fines, not penalties. Third, very limited scope. The online forms
should be limited to so-called paper pleadings, all submissions
should be in writing. If you want a full-blown cross-examination
discovery, go to court. Just to have people submit materials, and
let me go into some details here, because I think that these forms
can be very lean and very mean.
At the outset, make the trademark challenger meet their burden of
proof. Let them show you that they have a trademark or service
mark. Let them show you that the domain name owner is using
that domain name in commerce, which is a critical part of both
dilution and infringement under U.S. laws and other laws. Let me
explain that actually, that the trademark owner is using the domain
name in commerce or that the domain name owner is engaged in
the business of buying and selling domain names, which is
cybersquatting. Then, make the trademark challenger give clear,
specific allegations of how the domain name is causing confusion,
or infringement or dilution to their marks. Make these ..............
requirements. Make them show very clearly and very specifically
what is going on. Don't let them get away with babbling, Network
Solutions let's them do that, sorry Mr. Sbarbaro. Don't let them get
away with babbling, make them show what is going on, because
remember what is at stake here, that when you take away that
domain name you are going to be taking away that speech, that
business, that identity on the Internet that people have. Let them
know, whether it be through advertising or word of mouth, those
links mean something to domain names that are located and they
mean something.
Okay, so the trademark owner has met the burden of proof, shift it
to the domain name owner to respond. Let them show you why
they think they have rights in the domain name that they have
registered. Let them show you that they are in apple growing using
the word apple in a generic way. We are the only ISP on the
Internet using the word Intercom as a corporate name and
operating for years without causing any confusion to any other
Internet service provider or to a real estate firm in California, this is
a real example I am talking about. And, let them show you why
they are not cybersquatters. Let them present their defense in as
formal or informal way as they can handle in a court.
And then have the panel sit back and evaluate. The panel can meet
in real space, cyberspace, telecom space, satellite space or a
combination of all the above. And the panel is actually very
important, it should not be one person. I absolutely believe it
should be five people. Two attorneys who are known for being pro-
trademark and an absolutely equal number of attorneys, actually I
am sure you really need attorneys, but people on the other side
who are pro-domain name attorneys. And a fifth party who is an
expert in evidence, choice of law and arbitration. All of the panel
should be well versed in the domain name system, intellectual
property law and litigation generally. And from this panel I think will
emerge a sense of fairness as to what the decision is. Because
the scope of the authority is so limited, because the material is in
writing on paper, the evaluation should be very straightforward and
very fast. One to two hours per case per person maybe one
afternoon a week to clear all the challenges.
Who should adopt these panels? I believe it is the registrars. After
all it is their businesses in question, they are the ones dealing with
the end-user, they are the ones dealing with the domain name
owners. The domain name owners will have a very good idea where
the registrars are located. And I should say that where country
codes are concerned you know sovereignty is in question, so of
course it should be the local registrar.
Now, we get to the real interesting issue. Who should pay the
cost? I want to make sure that domain name owners are sitting
down, because I am going to say that domain owners should pay
the cost, but in a very interesting way. Let one dollar for every
domain name registration go to the registrars’ fund for arbitration.
Don't let the registrars use this, you know, take this fund and use it
for anything they want. It goes for arbitration. Require that the
money is only used for arbitration. And then let the cost of bringing
the domain name challenge be free and let the cost of defending
the domain name challenge be free. I think this is fair for a big
trademark owners who are bringing multiple challenges and to
small businesses, individuals and community organizations who
are defending the domain name challenge. No one will have to drop
out of the Process merely because they can't afford to pay.
Is there a role for the World Intellectual Property Organization in all
of this? Absolutely. I absolutely believe that these panels cannot
be chosen without your input. Also, without the input of the Domain
Name Rights Coalition, the American Arbitration Association, the
International Trademark Association, we are all going to have to
work together to create fair and balanced panels. And particularly
to create them for the different registrars that are out there. Further,
the World Intellectual Property Organization can take the lead in
keeping these panelists up-to-date on domain name and trademark
laws and their development in different countries around the world.
This stuff is moving very, very quickly and it is hard to keep track of
all the different cases in different countries. I think that is a very
special role for the World Intellectual Property Organization, so
providing names and providing information and education.
Now, let's take a step back. Does this system work? Does it solve
the three problems I set out. Does it create a way of stopping
cyberpiracy? Yes, it is fast and quick and clean. Does it lower the
cost and increase the speed for large trademark owners who need
to police their mark? Yes, it is cheap and fast and it is an online
solution ................ for the Internet. Does it compromise rights?
No, it creates no new laws, no new regulation of the Internet.
Because arbitrators have to find existing laws in traditional choice
of law principles. So, I think I have met the requirements that we
are looking for. We have got something of limited scope, limited
remedies, limited pleadings, limited time, and it works to solve the
specific problems that we have, but not hurt the existing people on
the Net. I also think that it will work because it is so clear and so
easy and so persuasive. The only way things really get done on the
Internet, the only way you are going to get the country codes to
follow you is by setting up a Process that they want. Intimidation
on the Internet ................. are real hard to impose. This will buy
them up.
Create a Process that is persuasive, that people want, that is quick
and fast and cheap and it will work without that. So, I think by
virtue of persuasion an example others would follow it. So, I plead,
don't throw the baby out with the bath water. We can protect
everyone with this Process of carrots not sticks and Process not
law. Thank you.
(Mr. .......................): My question is where do you see this issue
of mandatory (the rest is inaudible) ........... domain name
resolution policy that you propose?
(Ms. Kathryn Kleiman): Not mandatory as imposed by ICANN, but
perhaps as voluntarily adopted in the registrars contract with the
domain name registrants.
(Mr......................): I see. So if I applied as a domain name holder
to one of these registrars who followed this procedure, it would be
part of my agreement that I would participate in this dispute policy?
(Ms. Kathryn Kleiman): I think that would be reasonable.
(Professor Michael Froomkin): Would you be offended by, just
suppose we believe everything you said that it is all wonderful
(interruption) ..............
(Ms. Kathryn Kleiman): I believe everything *you* said.
(Professor Michael Froomkin): Ah! no, no don't do that. Let me
............ something to discourage frivolous ................... of the
procedure. Wouldn't we have to charge something to keep people
from doing this to other people?
(Ms. Kathryn Kleiman): As you know I have put in a lot of thought
to frivolous law suits and the fact that I have defended a lot of small
businesses from them. But what we have not ............. is very hard
under the current rules. I think that actually this may be the beauty
of the quick and dirty Process is that I am not sure there is much
cost of frivolous suits, because the panel would probably, at least
the frivolous trademark owner if that what we are talking about, the
frivolous trademark owner has to put down on paper why they think
what's going on is infringing. They have to make some kind of
accurate showing more similar to a preliminary injunction than to
kind of what we do under Network Solutions Policy, the domain
name owner will respond. And I think the panel will very clearly and
very quickly recognize what is going on, particularly if you see the
same trademark owner again and again and again. I think the panel
at some point will start dismissing them because they will
recognize they are frivolous. Just as I think they will be able to spot
cybersquatters pretty quickly.
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