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Real and Virtual Identities

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

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Real and Virtual Identities

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

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

  3. 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”)

  4. 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

  5. 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 ReportFindings & Approach

  6. WIPO Internet Domain Name ProcessReport 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

  7. 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

  8. gTLD Uniform Dispute Resolution PolicyWIPO Case Filings to end of May 2000 (531 cases)

  9. gTLD Uniform Dispute Resolution PolicyGeographical 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)

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

  11. gTLD Uniform Dispute Resolution PolicySome 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

  12. 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

  13. 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

  14. URLs • http://www.wipo.int(general) • http://www.arbiter.wipo.int(WIPO Arbitration and Mediation Center/domain name disputes) • http://www.ecommerce.wipo.int(ecommerce)

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