Real and Virtual Identities Francis Gurry Assistant Director General World Intellectual Property Organization (WIPO)

Real and Virtual Identities The Problem Spontaneous mutation of domain names to become also business identifiers Collision of two forms of identifiers 1Trademarks: publicly administered, territorially effective, legal titles 2Domain names: privately administered, globally effective, technical addresses Existence of dubious practices designed to exploit the lack of relationship between the two identifiers (cybersquatting)

The Policy Complication Inadequacy of traditional means of policy formulation or implementation –untimeliness of a treaty –insufficiency of national legislation or national court jurisdiction –fear of multiple inconsistent national laws USG request to WIPO in June 1998 (“initiate a balanced and transparent international process”)

The Process web site in three languages (E, F & S), 1358 subscribers from 74 countries open meetings with audio and text records available (17 in 15 countries and 5 continents with 1264 participants) list server (420 subscribers) three RFCs in three languages 332 comments on RFCs; altogether comments and presentations from: – 40 governments – 4 international organizations – 74 professional, industrial and academic organizations – 181 corporations and law firms – 183 individuals

Report Findings & Approach Abusive registrations are a significant problem Condemned by all Involve a wasteful diversion of resources Expression of existing law, not creation of new law Minimalist approach –cybersquatting only (not more general problem of intersection of global medium and territorial systems) –trademarks only

WIPO Internet Domain Name Process Report Recommendations Registration practices –availability of reliable and accurate contact details Uniform dispute-resolution procedure for.com,.net and.org in respect of abusive registrations Exclusions for marks that are famous across widespread geographical area and across different classes New gTLDs envisageable if foregoing recommendations adopted and if introduced in a controlled manner

gTLD Uniform Dispute Resolution Policy Abusive registration and use: –complainant has trademark rights in domain name –respondent has no rights or legitimate interests –bad faith registration and use Single panelist, unless either party opts for three-person panel (panelists and biodata available on web site) $1000 fee ($2500 for three-person panel) Model form complaint available on web site Decision in 45 days from commencement

gTLD Uniform Dispute Resolution Policy WIPO Case Filings to end of May 2000 (531 cases)

gTLD Uniform Dispute Resolution Policy Geographical Distribution of Parties (WIPO) Parties from 54 countries USA: 52.9% (306) of complainants EU: 29.1% (168) of complainants –UK: 8.8% (51) –France: 6.1% (35) –Spain: 4% (23) –Italy: 1.7 % (9)

gTLD Uniform Dispute Resolution Procedure Case Results (until end of May, 2000) 175 decisions rendered 32 (18.3%) complaints denied 47 cases settled before decision

gTLD Uniform Dispute Resolution Policy Some Features of WIPO Cases Widespread geographical application: parties from 54 countries Not all contested domain names immediately commercial –alcoholicsanonymous.net, universityofnebraska.com, toefl.com “famous” marks –microsoft.org, dior.org Endless possibility of plagiarism –bbcdelondres.com, bbcenespagnol.com/.net/.org –nokiagirls.com Beyond brands –events: worldcup2002.com/.net/.org –celebrity names: dodiealfayed.com, petergabriel.com, juliaroberts.com, johnnycarson.com, jimihendrix.com, sting.com

Domain Names: Outstanding Issues Scope of definition of cybersquatting –personality rights –(place names) and geographical indications –Article 6ter, Paris Convention (names and acronyms of international organizations) –INNs –Names of entities not protected by trademark law (corporations/organizations) Mechanism of Implementation Scope of application of mechanism in DNS –ccTLDs

Reflections The irrelevance of trademarks? –the increased importance of branding in distributed and virtual markets Why domain names? –Who (name/identity) and where (location) –fusion of search and navigation –towards a URI? The criterion of identifiers –distinctiveness or consumer expectation (generics) The death of specialty Another blow for territorialty

URLs (general) (WIPO Arbitration and Mediation Center/domain name disputes) (ecommerce)