Tuesday, 14 July 2009

On route to the IRT meeting in London

Nowadays, UK trains are really fast – 523 something kilometres in 4 hours. I am currently in one such train going from Glasgow to London. Tomorrow I will be attending the Implementation Recommendation Team (IRT) meeting, at the Royal Institute of Royal Architects at 9am. The plan was to sit and re-remind myself the key points of the report. But there was not enough time for a document that is so confusing and condensed with so many details.

The IRT report is a lengthy piece of 60-something pages and its main intention is to address trademark law issues due to the forthcoming expansion of the Root. It is quite fascinating reading the report and getting the vibes of what the IRT team seeks to do. The recommendation opens with a letter, signed by almost all IRT participants, which lacks inspiration and the ability to bring registrants and trademark owners together to fight cybersquatting and any other malicious activity on the Domain Name System (DNS).

The report repeats old mistakes and distances trademark owners and domain name registrants even further. Throughout the recommendation, the IRT team seeks to make registrants look as if they are the bad guys. It paints a picture in which trademark owners are the good, noble guys working towards the security and stability of the Internet and all rest of us are just bad; we want to harm trademark owners and their interests, we want to make profit from their marks – generally, that there is a conspiracy against them and we are not only part but the driving force behind it. This is not true. Of course, there are those registrations that aiming at harming a trademark; registrations that seek to extort or take advantage of the trademark owners. But, first, we need to bear in mind that this is not something new and, second, it is not that we have not sought to address its conceptual basis.

The IRT recommendation constitutes the result of the efforts of the IP community to provide legal protection mechanisms in light of the addition of new gTLDs. Presumably, the Intellectual Property constituency has been strongly opposing the expansion of the Root as they feared that trademark issues would be left unaddressed; the formation of the IRT team was the compromise ICANN found to ensure that trademark owners would get on board. But, is this really the case?

I think that the IP constituency is not opposed to this expansion as much as they might like us to think. Considering that the expansion of the Root gave the IP Constituency the opportunity not only to participate but also influence decision-making, I cannot help but wonder about the extent of opposition trademark owners have against the new gTLDs. It has been almost ten years since the IP constituency created and imposed the UDRP – a dispute resolution mechanism that would ultimately change the face of trademark litigation. Now they have the opportunity to change it once again.

Ten years ago, trademark owners won a significant fight and have imposed their will on the DNS through the Uniform Domain Name Dispute Resolution Policy. Back then, cybersquatting was emerging and it was a completely unknown territory; trademark owners simply did not know how to protect themselves. The UDRP was the experiment that was supposed to cure cybersquatting and all its subsequent manifestations. For the past ten years, four ICANN-accredited centres – through storm and hail – have been developing case law that is now used for various formal and informal statements and as a justification for further policy-making activities.

The IRT report does not take any of these ten years into account. It recognizes the work of the UDRP, but, at the same time, it contemplates that the UDRP is not enough. The reasons the UDRP is not enough and what are the new challenges presented for trademark law are not contemplated into the report. Remember all domain name registrants are bad and, thus, they need to be excluded form the DNS. Indiscriminately and without any legitimacy the report suggests three pillars of protection:

· IP Clearinghouse: seeks to transform and assign ICANN functions equivalent to national trademark offices. No criteria of entry are set and checks and balances are offered.

· Globally Marks Protected List: seeks to give exclusivity and utter control to trademark owners over the DNS. The criteria for entry are arbitrary and do not meet the ones set by courts and the legislature for well-know and/or famous marks.

· Uniform Rapid Suspension System (URS): seeks to provide trademark owners with an additional mechanism, creating an extra layer of administrative procedure and further distancing the parties from courts.

I am visiting London in order to debate on these issues. We have a serious problem and not enough time or people to speak about it. If we let this recommendation proceed unchanged, it will not only impact on trademark law itself but it will also inhibit the evolution of the DNS. It will provide trademark owners with the control to create an exclusive and commercial DNS; free speech rights and any other domain name use will be in jeopardy. We need to do something. I will certainly try to….

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