UN wants to stop "cybersquatting"

Pugget writes "The UN announced a plan to stop the buying up of domain names buy people unrelated to the name. " Basically they say they're gonna create a list of trademarks that can't be registered. I'm more concerned about the 'misleadingly similiar' clause. That'll make parodies a lot trickier.

Comments

Major Flaws in the WIPO Domain Name Proposal

[coats]

Have a look at this analysis by A. Michael Froomkin, Professor of Law at the University of Miami, and a Member, WIPO Panel of Experts, Internet Domain Name Process: http://www.law.miami.edu/~amf/quickgui de.htm

In short, Froomkin says the plan is seriously flawed, and constitutes a radical subversion of existing legal checks and balances:

• Bias. The plan is biased in favor of trademark holders [as opposed to others using the web as a means of speech and press];
• Enabling censorship. The WIPO plan fails to protect fundamental free-speech interests including parody, and criticism of corporations;
• Zero Privacy. The WIPO plan provides zero privacy protections for the name, address and phone number of individual registrants;
• Intimidation. The WIPO plan creates an expensive loser-pays arbitration process with uncertain rules [Plaintiff gets to choose rules anywhere in the world!! -- not just in defendant's country] that will intimidate persons who have registered into surrendering valid registrations;
• Tilts the playing field. The WIPO plan would always allow challengers to domain names registrations to appeal to a court, but would often deny this privilege to the original registrant;
• Smorgasbord approach to law. Instead of directing arbitrators to apply applicable law, WIPO proposes using additional, different, rules it selected-rules that will often disadvantage registrants.

Froomkin gives a link to his detailed (50-page) analysis. I think this proposal needs to be sunk!

Those quotes refer to the OLD draft...

[Froomkin]

No! Wait! That's my critique of the OLD draft. The new draft is quite a lot better. It fixes several -- but not all -- of the problems I identified in my 50+ page critique of the Interim Report. For my initial take on the Final Draft see here. More detailed comments will appear on my WIPO Comments Page Real Soon Now.
Here's the key part:

The World Intellectual Property Organization's Final Report on "The Management of Internet Names And Addresses: Intellectual Property Issues" is in all but one major respect a substantial improvement on the Interim Report.

• The attempt to define "abusive registrations" represents a good-faith effort to define cybersquatting. While this new definition will no doubt benefit from public comment and discussion, it seems to hew closely to the definitions evolving in the various courts that have considered the issue.
• Unfortunately, the Final Report leaves essentially unchanged the proposals in the Interim Report regarding the proposed treatment of globally famous trademarks. It proposes a baroque ad hoc quasi-judicial procedure based on vague (and in once case prejudicial) criteria to define when a trademark is sufficiently internationally famous to be granted special privileges on the Internet that the mark would not currently have under law. At present there is no agreed definition of a globally famous mark, although WIPO-sponsored panels have been seeking formulate a definition for years. Furthermore, the WIPO proposal rejects imposing any upper limit on the number of trademarks that may be declared "famous," perhaps because it is impossible to predict how many marks will qualify.
• As noted regarding the Interim Report, parties who lose their domain names under the proposed dispute resolution procedure and believe the arbitrator erred may find it difficult to find a court capable of hearing their claim. Because the Final Report restricts the dispute resolution procedure to a much narrower class of cases than did the Interim Report, one can expect that there will be many fewer such cases than initially feared - but not zero.
• In addition, there are a number of relatively minor ambiguities and possible errors relating to material which appears for the first time in the Final Report. This material will benefit from public review; and in some cases some of this material may need minor revision.
• While not strictly an intellectual property issue, and without wishing to minimize the complexity and importance of the real issues that remain to be determined, the Final Report's discussion of new gTLDs and especially the creation of a new privacy-enhanced gTLD for non-commercial uses, is a less ringing endorsement than one might have hoped.

-- Michael Froomkin
A. Michael Froomkin
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA

Don't stick your head in the sand . . .

[werdna]

I agree with the criticisms about the UN and WIPO overstepping their bounds. However, I disagree with the sense that they cannot do anything harmful, and should be ignored. WIPO policies have been widely adopted, and when adopted by domain name registries, they can become as effective as though they were the law.

The difference here is that these rules are being promulgated by people accountable to no constituency except, of course, the special interests that sponsored their international activism. (This translates about 95% to large multinationals seeking to end-run enforceability limitations of the U.S. trademark laws.)

Understanding that it is highly likely that WIPO policies can become domain name dispute resolution policies; and that these policies, if applied, can effectively create quasi-judicial rights in gross for these well-heeled interests that they could not obtain otherwise (often for which the loser probably has no meaningful legal recourse in the courts of any nation) something must be done.

A few brave souls have been active in fighting the good fight, and have been desperate to get someone, anyone, to get interested enough to chime in and comment. Michael Froomkin at the University of Miami has been one of the leaders. He writes about the details at:

http://www.law.tm/

I would advise anyone with an interest to get "active." Whatever your thoughts about the propriety of international government, the non-governmental nature of the internet makes it quite vulnerable to this kind of de-facto policy-making, which policy-making can in time become effective as though it were the law.