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Shills protest Paris Convention on IP

Why does commerce get second class trademark treatment?

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ICANN 2007 Los Angeles "This is an open meeting, of course, but I just want everyone to know it's all off the record." Steven Metalitz, Intellectual Property Constituency (IPC)

Thanks, Steve. Since everything's off the record, what better way to give the public an idea of what really goes on in the emerald city of the internet than to offer an up close and personal view of ICANN at work? We thought we'd start with the IPC meeting itself and spiral downward from there.

IPC meeting

The protection of trademarks is always a tough issue at ICANN meetings - whether Delta Airlines get preference over Delta Faucet where some kind of "delta" domain is concerned is a typical problem, since the domain space leans heavily toward abbreviated, or at least shortened, forms.

Unhappily for commercial users of the internet, the Paris Convention - which protects intellectual property rights between signatories - has a major carve-out for what are known as Intergovernmental Organizations (IGOs). The Paris Convention offers almost no recourse to commercial users when a commercial trademark allegedly conflicts with that of an IGO.

The abbreviated nature of naming in the domain context, as well as the universal reach of the internet, have led to increasing trademark conflicts, which is why ICANN has the Uniform Domain dispute Resolution Procedure (UDRP) in place. This arbitration provision greatly streamlines potential litigation by funneling it into an alternative dispute resolution procedure that, for its faults, at least has uniform rules for everybody.

The IGO Dispute Resolution Procedure (DRP) is an objection-based administrative proceeding, and has been modeled on Article 6 of the Paris Convention and WIPO 2, much to the chagrin of the Intellectual Property Constituency (IPC) and even the United States Patent and Trademark Office (USPTO), both of which would prefer a regime more forgiving to Microsoft, say, than UNICEF or the Red Cross. The IPC made it amply clear at the IPC meeting on Tuesday that the current draft proposal would not pass muster.

Generic Names Supporting Organization (GNSO) council kicks it up a notch

And so, the GNSO council meeting rolled around on Wednesday, and what was the result?

In a spasm of procedural confusion remarkable even for an ICANN proceeding, the GNSO council considered a motion - at least we think it was a motion - to initiate a Policy Development Procedure (PDP) to resolve potential conflicts between ICANN policy and certain laws and international agreements covering the trademarks owned by IGOs. Here's a sample of this richly entertaining, Keystone Cops-worthy debate:

ROSS RADER: Great, good. It doesn't indicate who's the maker of this motion and I lost track of that. Who put this forward?

AVRI DORIA: Actually, it is more of a proposed motion. It is a motion that is sort of on the table automatically from -- that we need to consider based on the schedule and the bylaws. We have issues report. We said once we got the draft, we would come back. It actually has not been made. It is a proposed motion. It has not been made by anyone.

Hmmm. OK.

ROSS RADER: There is no seconder for this, therefore, no one to ask to withdraw it based on the commentary we have been hearing from the council and the community. I would propose to withdraw this motion at this time. I'm not seeing, as Wendy has pointed out, any strong consensus to move forward with any further examination of these issues.

AVRI DORIA: Okay.

ROBIN GROSS: I'll second that.

AVRI DORIA: Okay. So there is a motion to withdraw. And this motion - as I said, I don't believe it was actually specifically made. It's a motion that falls specifically out of the bylaws. Kristina?

KRISTINA ROSETTE: I was actually hoping for clarification. I am looking at three motions. There is one that's Motion 1, Motion number 2 and the one I just posted, the council list. Which one are we talking about withdrawing?

AVRI DORIA: I believe Ross was talking about Motion 1 which has no formal motion or seconder, just a procedural motion that we need to consider. Your motion which you just sent in to the list which I've put up there is a motion that, I guess, you're making and would need a second, but I think first we would need to deal with removing the procedural motion from the table.

CHUCK GOMES: Avri, clarification in this procedural.

AVRI DORIA: Yeah.

CHUCK GOMES: We don't have anything to withdraw. If nobody makes that motion, there's nothing to do.

AVRI DORIA: That's essentially true. I mean, the motion - it's one of those things that's being sort of - in our new attempt to try to follow the bylaws as much as possible to the letter, it is.

Bravo, council. Way to punt the ball on a proposal to study how to reconcile ICANN policy with what at least some countries consider to be established international law - whether true or not, bold move. Well, at least the by-laws are being followed.

The council then considered a motion proposed by the IPC to not initiate a PDP, but rather establish an ad hoc study group to explore the IGO trademark issue further, short of a full PDP. Let's cut to the roll call vote and listen in:

GLEN de SAINT GERY: 12 in favor; eight no; and four abstentions

AVRI DORIA: So, basically, it does not have a majority. Oh, there's 25 votes and it got 12 out of 25 so the motion doesn't pass. If we've counted everything correctly. So, yes, Chuck.

CHUCK GOMES: Two comments. One of them is this in no way prevents, as far as I can tell, a group of interested stakeholders bringing something back to the council later. So now the second question I have is procedural with regard to the PDP, and I don't know if we need Dan's help on this or not. We have an assignment with regard to the PDP procedures to make a decision on a PDP, and do we - do we need a formal motion to say we're not recommending a PDP or is it sufficient just not to do so?

Touche, Chuck.

When all is said and done, the GNSO council doesn't have the authority to do anything other than commission studies - the full ICANN board has to decide on actual policy issues, though with considerable weight given to the GNSO council's position.

Nevertheless, the amount of effort involved with getting the GNSO council to vote not to do something it isn't required to do in the first place should trouble even the most hardened bureaucrats.

European Union countries get along just fine without participating in the Whois database and despite the fact that the World Health Organization (WHO) or some such group gets extra trademark protections, although the IPC raises a stink anytime ditching the spam-enabling Whois database is suggested, inaccuracies be damned. Likewise, the privacy advocates dig in their heels at any suggestion that Whois be made permanent - rather than the eternal object of ICANN study - when there are plenty of proxy services out there that will already anonymously register domains. These people can't find a compromise?

Maybe the GNSO council is what needs a sunset provision. ®

Burke Hansen, attorney at large, heads a San Francisco law office

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