[council] Letter from WIPO to ICANN

Bruce Tonkin Bruce.Tonkin at melbourneit.com.au
Sun Nov 20 17:07:54 UTC 2005

Hello All,

I note below that there is a fundamental flaw in the understanding of
the process.

It seems that WIPO's expectation is:

- WIPO recommends new policy to ICANN
- GAC supports the new policy
- WIPO requires ICANN to implement the policy

Instead the process as set out in the ICANN bylaws should be:

- WIPO recommends new policy  to GAC
- GAC advises Board of WIPO recommendation
- Board requests that the GNSO commence a PDP
- the GNSO engages the ICANN community in considering the issue
- The GNSO MAY recommend that the Board adopt a new policy
- If the Board adopts the Policy, it requests that staff implement the
- Staff may seek advice from ICANN community on how to implement

With respect to UDRP, as I understand it there are established
international treaties associated with dealing with trademark
infringement.  An affected party may take a person to court to resolve a
dispute over trademarks.  UDRP was established to provide a lower cost
option for all parties compared taking the issue to court.

The real question related to country names and IGO names, is "assuming
UDRP doesn't exist what is the existing legal process for protecting the
intellectual property rights of country names and IGOs".   The issues
faced by countries and IGOs with the mis-use of their names is not
confined to domain names.  In fact it is far more likely to occur in
emails and website content.   Some understanding of how these other
infringements are managed today would help.   

As I understand it, the general GNSO community position is that ICANN
should not be creating special rules related to the strings used in gtld
domain names  (ie ICANN doesn't regulate content).   ICANN can however
develop dispute resolution systems based on laws established outside of
ICANN that are widely accepted.   It has not yet be made clear to the
GNSO community what laws apply to country names and IGOs.

I recommend that the GNSO Council arrange to meet with Mr Christian
Wichard from WIPO in Vancouver to discuss this further.

Bruce Tonkin

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