March 29, 1999 11:55 AM PST

WIPO readies domain report amid criticism

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Criticism is heating up today as an international policy body gets ready to release its solution to the growing number of trademark squabbles over domain names.

The World Intellectual Property Organization (WIPO) is set to submit the plan tomorrow, but could wait until mid-April, as the public comment period was extended by at least a week. WIPO will then pass it on to the Internet Corporation for Assigned Names and Numbers (ICANN), a new nonprofit anointed to oversee the Net's address system. ICANN is expected to implement the blueprint as directed by a Clinton administration white paper.

But as the release draws near, opponents have charged that the proposal favors big business over everyday Net users and mom-and-pop Web sites.

Following a 50-page critique by a well-known Miami Law School professor, Michael Froomkin, more academics now are coming forward to dispute WIPO's anticipated proposal.

WIPO's December 23 interim report calls for See Don Telage Newsmaker all domain name buyers at the time of registration to agree to submit to arbitration if any party in the world challenges their ownership of a name. Although the complainant has to pay the initial fees when he or she calls for arbitration, both parties then have to agree on a "decision maker" who could later revise the payment scheme.

The plan was drafted, in part, to curtail so-called cybersquatters, who register domains for prominent offline names and then try to sell them to the highest bidder. Off the Net, there can be equally famous trademarks for a given name, such as Sun. But online there can only be one "www.sun.com," creating a legal mess when it comes to deciding who is entitled to the domain name.

However, critics say under WIPO's proposal there are no safe harbors for someone who has registered a domain name for personal use, and that noncorporate domain name registrants will likely back down instead of fighting well-known companies over names they claim to have copyrighted in the bricks-and-sticks world.

Such disputes are not uncommon. In January, for example, a legal bout cropped up between the company that publishes Archie Comics and a parent who had set up a site at "www.veronica.org" in honor of his 2-year-old daughter. Archie Comics claimed the site infringed its copyright of the name "Veronica." Archie Comics dropped its effort to close down the site after widespread press reports.

Critics say the WIPO plan favors big business at the expense of individual interests. The Association for Computing Machinery (ACM) and the Internet Society submitted a joint statement to WIPO calling for the adoption of recommendations by Froomkin and others that they say better balance the rights of corporate interests and individuals.

"Less wealthy parties often will be unwilling to risk losing what will inevitably appear to be an uncertain case decided by uncertain rules, especially in a 'loser-pays' system," the ACM and Internet Society wrote in their comments to WIPO.

"Registration of domain names is both an expressive activity in itself and an important tool for persons who wish to communicate a message," the statement continues. "To the extent that the WIPO proposals do not create safe harbors and protections for all legal personal, political, and commercial expression, the [WIPO] interim report is insufficiently attentive to the basic human right of free speech and open communication."

Until now, Network Solutions (NSI), the current government-appointed domain name registrar, has been the primary referee in domain name disputes, but that is going to change as new players enter the market, intensifying the need for standards.

Under NSI's policy, names can be registered on a first-come, first-served basis. If the owner of a U.S. registered trademark challenges the use of a domain name, in most cases the name will be put on hold after 90 days if the situation is not resolved between the parties. If one party sues, use of the name is put in the hands of a court.

 

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