Dear people of the WIPO, (and other concerned parties)
I appreciate the invitation to provide commentary and input into the
process of establishing further regulation on the internet names and
numbers arena, the scene of many a battle, past and future. The WIPO's
position on most of these issues is quite well demonstrated in its
actions and determinations on individual cases in recent months. It is
clear that there is a serious choice of bridges to cross now. as we will
either choose a bridge that leads to a head-on collision or one with
fewer obstacles. I do not foresee any option that will conveniently
avoid all
potential obstructions. This said, there are very certainly ways far
referred over others. That is what I want to address here below:
UDRP
You site that ICANN has adopted many of the proposals from the first
report and this is true. You further state that the wide usage of the
UDRP proves its need in the internet community, and this is not to be
denied. The problem here comes in the decided advantage given to any
protesting company over the current holder of a given domain name.
The system allows the protesting party to chose the singular arbiter to
be involved in deciding the case. It is being proven ow that smart
protesters are watching the trends and beginning to chose those arbiters
that most consistently find the protesting part to be justified, thus
winning the use of the domain. We can not blame anyone for choosing a
path of
greatest likelihood for success, but where is there any justice for the
domain holder who has no say at all in the arbitration, that, by its
very nature, is supposed to be nonpartisan. I believe that a UDRP is
vital, but it should be modeled after those where each affected party
chose one arbiter and those two arbiters chose a third that they can
agree on. In this way, each party has at least some representation of
its case to the process where it does not under current rules. Should
the WIPO ever be taken to task over some of its rulings, only a matter
of time until this happens, you certainly would not want the protesting
party to chose the sole arbiter in your case, would you? Of course not!
There is NO justice there and therefore fails to meet the objective of a
truly fair dispute resolution system.
The Underlying Problem
I believe the underlying problem in unique name and number
registration is in the simple impossibility of everyone getting the name
they want in the most desired TLD. As Will Rogers said many years
ago about land, "they just aren't making any more of that stuff". While
the supply of land or domain names are finite in any given location or
TLD, there is new and fervent demand for it everyday. It is important to
understand from the outset that under no circumstance will every person
or company with legitimate claim to the domain to FirstBank.com or any
of a million others like it will ever be satisfied.
It just won't happen! Even if we set up a complex system of location
based TLDs and Secondary LDs and so forth, there will still be a
conflict somewhere that can not be resolved by subdividing cyberspace.
(i.e. firstbank.us.ga.atl or firstbank.uk.lon to reduce pressure between
name holders in Atlanta and London who have legitimate claim to
firstbank.???) What I am saying here is that we must give up the idea
that there is a
perfect system that will solve these problems. Instead, we should
educate people in how to make do with names that are available at a
price they can afford when they are ready to enter the virtual real
estate game. Just imagine if I were to sue my neighbor because he holds
a piece of land that I think is perfectly and "uniquely" suited for my
new home. I would be laughed out of any court for lack of foresight or
ability to buy this
land under normal conditions as anyone else with a perfect and uniquely
suitable use for the land would have to do.
What exactly is it that makes the internet addressing system
different in real terms? The only one I can see is that it is young
enough of a system that large corporations and governments who lacked
foresight (or may be newly re-named) feel they can use their economic
and political muscle to adapt the "real estate law" of the internet to
favor their greater financial power over those who arrived first, be it
for better or worse.
This is exactly what I feel I am watching before my eyes as we
communicate, the ever quickening demise of the rights of the individual
and small business entity who had the foresight to help make the
internet the popular venue that it is. (There were MANY little guys on
the net before most of today's corporations found it worthwhile to be
there at all; and now they want to claim the choice pieces for
themselves simply because they can influence the law that governs the
distribution of them. In my humble opinion, the WIPO has played
perfectly into their hands and continues, through reports like this one
will likely be, to turn the tide on the true backbone of the internet,
the individual users, in favor of the more financially generous
"strongmen" of the conflict, the big trademark holders and institutions
who try to parlay size in one realm into position in another. If you
allow this to succeed, you will have sold out the very people who made
the internet work as it does today to begin with. Without the
individuals who populated the net in the early days, little or no value
would have been ascribed to this real estate at all. Now the larger
interests recently
entering the stage are trying to wrest it away and make it a
semi-private playground complete with consumers.
INNs
By the very nature of an INN, they create no conflict because they
take it upon themselves to chose names that do not conflict with
anything. Perhaps we should simply allow such names to be held in trust
in each registry from the time the name is decided upon and proven
harmless to protect the product from scalping. The UN could then place
information about the product on these sites for the benefit of doctors
everywhere or simply squat on them in the comfort of knowing that at
least no one could use the addresses to defame the product or obscure
its meaning or recognition factor.
Personal Names
Pressure on these names can be reduced by a system of hierarchy such
as domains based on country, state or province, county or prefecture,
city or town codes. There will always be two Bill Smiths in most US
small towns, however, so we can reduce pressure, but we can never remove
it completely. It will come down to who owns the latest lease on the
property and what it takes for them to give it up. It is entirely
possible, in fact unavoidable, that there will be multiple justified
users of virtually any domain name conceivable. We can expand the real
estate
further in virtual worlds than in real ones by use of multiple level
domains, but there will eventually come a point where Will Rogers will
have been proven right in cyberspace, too; "They're just not making
anymore of that stuff!" When that happens, whether it has now, or will
in the future after there are tens of thousands of domain groups, we
will come back to the same questions and have only the same answer,
where were you when it was last available and why didn't you get it
them?
_____________________________________________________
(i) Should personal names be protected against bad faith, abusive,
misleading or unfair registration and use in the DNS?
Bad faith and abusive are rather subjective tests of a name holding
and intent must be proven. If it is owned for the purpose of
speculation, even though it is a sad departure from the founder's
concepts for the internet, this is neither "bad faith" or "abusive", but
merely either a shrewd or foolishly costly business move, depending on
how easily the potentially offended party can adapt with another virtual
address. If these terms
mean the use of these domains to criticize the entity in question, in so
far as it is not slander, this is free speech and should be protected,
if not admired. and perhaps might be required to contain a link to the
obvious entity to present their own side to the surprised web-surfer or
potential consumer. This would help to do away with some of the
misleading effects of holding and using a "brand" name for negative
purposes.
All these I understood, but what is "unfair"? Is this the generic
term used by people who lost out on a domain name they thought they
should have had for those who currently enjoy it? Without significant
meaning, it defies meaningful comment or suggestion for change.
_______________________________________________________
(ii) Which personal names, if any, should be protected:
- all names,
- names of famous persons,
- names of government officials or other persons in the public eye.
If any name is "protected", than all should be! Is my name more
important to me than yours is to you? Probably not. Why should any
individual name be protected (reserved?) for another holder of that
name?
Someone recently bought a house that my wife and I really thought
was perfect for us. Will WIPO help with our arbitration to get this
house awarded to us? It really would be perfect for us and we can not
afford to pay what the new owners think it is worth! Who will come to my
rescue among the property rights advocates? If not, why should you
support any one person over another for the right to their name as a
domain name?
______________________________________________________
(iii) How do you define bad faith, abusive, misleading or unfair
registration and use in respect of personal names?
This should be answered by the WIPO as someone who helped coin such
concepts for their clients. The rest of us can then better define our
defenses.
_______________________________________________________
(iv) How do you deal with multiple incidences of the same name?
Real estate and the market place have an easy answer for this. Once
something is out on the market, like a name that has been registered and
thus given a "life", it goes to whoever approaches the seller with what
the seller recognizes as a worthwhile price to sell it for. If five
people want the same unique product, the shrewd owner will raise the
estimation of his property's value as long as more than one bidder is
available. Of course, there will always be some who simply want to keep
what is theirs and who is to say they should have to sell or relinquish
it just because there is other interest in it. If you think they should
have to, please tell me who will represent us to get the house we so
love from the new owners who think they love it more than we do and got
it first.
_______________________________________________________
(v) What provision, if any, should be made for dispute resolution with
respect to disputes on personal names registered as domain names?
At least, make a fair format for the UDRP such that both sides have
equal representation in the arbitration rather than assuming that the
more famous of the two sides who is complaining should win. Next week
may bring a new and even more notable person by the same name into the
public eye. We simply can not make decisions on the basis of
recognition. As for people who register domains of other people's names,
again, just have a fair system of arbitration so that any special
circumstances, many we can not begin to anticipate, will be given
reasonable hearing before a decision is handed down.
_______________________________________________________
(vi) Would directory, listing or other similar services aimed at
avoiding domain name conflicts concerning personal names be useful, and,
if so, please describe such services?
Assuming this means a sort ow internet "telephone book" so that
people and their pages can be found despite the un-related domain name
utilized, I think this basically already exists in search engines. If
there is some organization willing to make a central and supposedly
superior such search engine, it might help as a recourse for those who
lose their battles, but it is unlikely, until very popular, to relieve
the battle for the chosen domain name spots.
__________________________________________________
Names and acronyms of international intergovernmental organizations,
Geographical indications, geographical terms, or indication of source,
and Trade names.
Each of these might well be given an exclusive piece of real estate
to sub-divide and have a built in system for disputes before they open
and thus at least have fairness, if not make everyone happy. It would
require a pecking order to be laid out up front and religiously adhered
to. It could then help.
Short of this, there is no clear solution available. The question
should be, who will make the rules and when? A few examples of widening
the
space a little to relieve the pressure on the walls. It would also serve
to make such groups easier to find rather than trying to figure out if
they are using .com, .net, or .org among the current choices.
.NGO - Non-Governmental Organizations
.GOV - Already exists in one sense, but has room for great international
expansion; or add another for outside the US if needed.
.GEO - For world geographical sites of note, not to be confused with
governmental jurisdiction sites! These are for tourism and promotion.
.TM - For trademark holders unable to find the "right" .com, might well
be sub-divided into geographic or political jurisdictions.
Perhaps here would be a fitting place to deal with the concept of
"addresses" versus "trade names" in the battle for domain names. Until
some definitive law (such as the ABA seems to be pushing for
internationally) comes to the forefront and gains wide acceptance,
domain names are addresses only and should not be impossibly protected
by trade mark and other such separate legislation. Many examples are
already apparent in many discussion groups of multiple companies in
multiple jurisdictions having equally reasonable reasons to claim a
particular domain name that most closely reflects their business or
product name. IN NO CASE can all of these legitimate claims ever be met
to everyone's satisfaction so long as we think of domain names as
trademarked or copyrighted property. If we consider them as they were
intended, as addresses, it becomes easier to justify. There is a company
called "onemainstreet.com" I believe. This is their virtual address and
they have adopted the address as their company name. This does not
preclude me from living at one Main Street, Anytown; but it would make
it impossible for me to register my real address as my virtual address.
It is simply not available. I would have a just reason for demanding
this address because I can prove that I live there or have a business
there or even have named my business this because it has this same
actual address and it seemed like a good name for my company. Let us say
that there are two such businesses in the same region and each one, in
its own town, wants to incorporate in the same region with that name. I
believe most governments would not allow this because the first one is
first and the others are too late. Why can we not use such logic in the
virtual world. Some people simply get beat to the punch. Does this mean
they can not open their business? NO! Just that they must chose another
name to be officially known by in that region. (or TLD)
Here in the US, a major food retailer was growing quickly under the
name "Food Town" in North Carolina. They owned that name in North
Carolina, but not in every state. In order to grow into other states,
they had to either change their name for the new states only or for the
whole company to keep continuity. They changed their name to "Food Lion"
which was available in all the planned states and built name recognition
for the new name rather than complain openly about and try to sue the
people under the name "Food Town" in the other states. I'm sure they
would like to have kept the old name, but reality did not allow it and
they are now again known for the quality of service and product rather
than for any particular name. The internet can and should be no
different. If you can't get the name or address you most want, you get
another and do the best you can to make it known for the content it
includes or represents. Certainly it may not be as easy, but it reflects
reality, which, like it or not, does have its place in the virtual
world.
_______________________________________________
In closing, The WIPO and ICANN seem to believe that there should be
a means for the people who mean the most to them, whether it be
sponsors, members or contributors, to get the sites they most want on
the internet. There is nothing wrong with this as long as it can be kept
in
context with all the others that believe they should get the best sites
on the internet, too.
The problem comes in the WIPO and ICANN friends being willing to use
their real weight to gain what they want in the virtual world. I appeal
to ICANN and the WIPO to let these friends compete in the real world on
the internet, too. We all have a list of sites that we would own if we
could. We all own a list of sites that we have made the best with in the
absence of the most desired sites. Through the clever use of search
engines and proper site promotion in the real world, we have all been
able to work within the system of the virtual world just like we have
made do with the house that WAS available and the corporate name that
WAS available in the real world. Why set up a whole pecking order to
replace what has always been normal order of business in a first come,
first served world.
If we can not satisfy more people under this new proposed system,
why change the old one. Let us strive to find ways to satisfy more
people first. When we can do this, the change will be justified.
Very sincerely,
Karl E. Peters
[EMAIL PROTECTED]
