WIPO Internet Domain Name Process

Transcript - part 2: Washington, DC regional consultation

Georgetown University
October 1, 1998

23 September	29 September	1 October	6 October	7 October	13 October	19 October	22 October	22 October	1 November	4 November
San Francisco, California, USA	Brussels, Belgium	Washington, DC, USA	Mexico City, Mexico (Spanish only)	Cape Town, South Africa	Asuncion, Paraguay (Spanish only)	Tokyo, Japan	Hyderabad, India	Budapest, Hungary	Cairo, Egypt	Sydney, Australia

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Ms. Deutsch: thanks Chris. Boy, that was not nice to make me go first. All right, I want to thank WIPO and the Panel of Experts for your commitment to this important process and for being here and for traveling all around the world doing what you are doing.

Bell Atlantic is one of the largest communication companies in the world and we are committed to the future of the Internet as a provider of Internet infrastructure and also as an Internet service provider. At the same time, we are a trademark owner of the famous "Bell" and "Bell Atlantic" brands. Our trademark infringement problems started several years ago and have quickly grown out of control. Although we continue to put out hundreds of fires, the ultimate goal should be to stop the arsonist and that is why we are here today. Many people do not and still are not taking the trademark concerns of the commercial sector very seriously and some of these same people still insist there is no serious trademark problem that requires WIPO's involvement in this process. The evidence, however, I think, screams out for your help. Bell Atlantic submits Exhibit A for the Panel's consideration, this is Exhibit A. This is a sample of our domain name watching service reports from the last nine months just for the "Bell" mark and this is just for .com, .net and .org, the existing gTLDs. In less than a year, we have already had 579 matters in the existing gTLDs. Out of the 579 matters, only ten of these could be resolved under NSI's Dispute Resolution Policy and Exhibit A is filled with tons of Bell cybersquattings, pirate, pornographers and other companies in the telecommunications field who are trying to exploit the fame of our Bell mark. We even had a satanic cult try to use the Bell Atlantic mark and I think I may be the only trademark lawyer that has actually been prevailing against the devil. But for each of these matters it is really important to realize that we were required to spend considerable resources investigating every matter, monitoring to see if these people are actually using our marks, preparing cease and desist letters and suing if necessary to enforce our rights. And none of the matters can be resolved easily or quickly, they all drag on for at least a year and we are finding that this is becoming a literal piracy epidemic and we have spent more money and resources enforcing domain names this year than we have spent in past years combined. The report indicates that we now log-in an average of fifty new infringements a month, and this is just for Bell. The monthly breakdown shows that it is steadily increasing over time, we are also discovering that infringements in the CCTLDs are dramatically on the rise and we believe in the future the ccTLDs will be just as big a problem as what exists today in the gTLDs.

The overwhelming problems we face today lead to one conclusion. We need immediate, low-cost and effective solutions, when it is appropriate to add new gTLDs, we believe that only one or two should be added, slowly and deliberately. We need enough time to study the effects on trademark infringement. We also need to know whether these new gTLDs are serving their intended purpose, for example, are they actually opening up new spaces for the legitimate users who need them or are they just new places where people are running and flocking to infringe? A slow, deliberate approach will also allow WIPO to determine whether its proposed recommendations are working properly. A big part of our problem can be cured on the front end through dispute prevention. The goal should be to prevent as many infringements as possible from occurring in the first place. Not simply to send everything on to ACP Panel or arbitration or to the courts, really the watch-word should be prevention, prevention, prevention.

We agree with all the elements WIPO has raised in RFC 2 to improve the domain name application process and beef-up registration contracts. We frequently battle infringers who give phoney identifying information in their application and Exhibit B which follows the first sheet of your page are some of the examples of false information we have found in the last several months, it includes peoples who give phony addresses, phone numbers like: 555 12 12, post office boxes that are false and all sorts of things. Although we have many suggestions for effective dispute prevention, here are a few critical ones: first, we believe that registrars should adopt a uniform policy banning false information in the domain name application, knowingly placing false information in an application should be a material breach of the contract and result in the automatic suspension of the registration. Another must, from our point of view, is prepayment of registration fees, no-one should be allowed to register a domain name before payment is received. We find that many of our infringers have not paid for their domain names and prepayment would certainly cut down on much of the cybersquatting. We also support WIPO's role in establishing recommendations for famous marks and for protecting them. In addition to the usual indicia of fame, I believe that if a mark has been subject to 50 or more separate incidents of cybersquatting that should be prime facie evidence of fame. We also believe that registrars should adopt a uniform policy that bans cybersquatting and warehousing of famous marks. The members of our Private Sector Working Group are finding that the same people are stealing our trademarks over and over again and here is a creative idea to deal with this problem: if the trademark owner submits evidence of cybersquatting to the registrar or registry and agrees to indemnify them, they should take down the domain name, this is similar to the U.S. copyright legislation containing the concept of notice and take-down, service providers in that context have agreed to take down infringing materials to assist in halting copyright piracy on the Internet and it could work the same way with trademark infringement. In addition to these steps, we still support both the creation of national laws and an international treaty banning cybersquatting. We also support the idea of a pro-active exclusion in the new gTLDs for famous marks, depending on how it is implemented it could help cut down on the most obvious cases of cybersquatting and although it will not solve every problem, it certainly would be a good additional deterrent. WIPO should also seriously consider the use of a waiting period, the waiting period is a familiar concept to all trademark owners, it is also good as a matter of public policy and the pros include: 1) provide notice to people of the new domain name applications, 2) it prevents applicants from prematurely investing in names that may not be available and 3) it also provides greater business certainty for applicants who successfully register a domain name after the waiting period has expired. Dispute resolution is also important, the same dispute resolution policy should apply across the board to both gTLDs and CCTLDs. Dispute resolution should not be the dumping grounds for all problems however. It should be a reasonable last resort alternative for trademark owners, no matter how reasonable one might think the fee is for such matters, if all the thousands of disputes we face today were sent to litigation collectively the cost would become unreasonable. These costs in many cases are unnecessary and will ultimately be passed on to the consumer, making electronic commerce more expensive for all of us. Expedited on-line dispute resolution is an excellent option for trademark owners, but it should not be the only option, the trademark owner should also have the option to go to court, the trademark applicant must agree in its contract with the registrar that it submits to jurisdiction in a wide variety of places, including submission to the ACP process. If the trademark owner goes to the ACP panel, the loser should pay all costs associated with the action, this determination could, of course, be appealed to a national court if necessary and, of course, trademark harmonization is still a goal that will be needed in the immediate future. However, loser pays is yet another deterrent to willful piracy on the Internet and of course the registrars and registries must agree to be bound by these judicial determinations. These are only some of our major concerns, I hope they have been helpful and constructive to the panel and, at the same time, I reach out to the rest of the Internet community to work with us to solve these problems and move forward constructively on the exciting challenges that lie ahead. Thanks.

Chairperson: Thank you very much Sarah Deutsch. May I ask you just to stay there for a few moments so if there are any observations or questions that anyone might wish to make. Sir, please. I wonder if I may ask you to, perhaps there are microphones, but to identify yourself for the record each time you make an observation or ask a question.

Mr. Feld: Is this on? I am sorry, first of all I have an ear infection therefore I cannot even tell if this microphone is on or not but I will assume that it is. Harold Feld, Domain Name Rights Coalition. I just would ask two points of clarification if I may: one is, on your proposal that the loser should pay for the dispute resolution process, is there any consideration on the effect this might have for people who have legitimate claims in the United States where the rule is: "each side pays", one of the arguments that has been raised against adopting this sort of "‘loser pays" system is that it unfairly penalizes people with fewer resources. That small companies simply cannot risk going to a court even if they have a high percentage chance of winning because it is a make or break issue for them, whereas a large corporation can certainly afford to pay its own legal fees. The other question I would ask is: do you have any suggestions or any observation on how this process would apply in the case of what is know as "reverse hi-jacking" which is where a large corporation comes and makes a claim which would not be supported under traditional trademark law but because it is an individual or small business that is the nameholder, the nameholder has the choice of either a lenthy or expensive process defending itself or giving in to the large corporation's demand and I cite as one example of this the case of polky.org where a large toy company decided to come after a small boy on a name which, under any standard of trademark law, was clear was not conflicted.

Chairperson: Thank you Mr. Feld. Ms. Deutsch?

Ms. Deutsch: Thanks. I just want to say that, you know when you look through our Exibits, you know, the 579 infringements you are not finding any of the examples usually where is the little person and we are reverse hi-jacking, we are finding that we have got people cybersquatting all over the place. So I think the majority of these matters that would go to an APC panel would be something that does involve true infringement and not, you know, the reverse hi-jacking. The costs for the ACP process are going to be relatively low, if somebody can afford to register a domain name they should be willing to pay those, you know, relatively low costs to fight for and, you know, the problem for us is that it becomes; we have the reverse problem which is when you put all the fees together and if we have 579 of these in nine months from one of our marks, we are going to be spending a fortune litigating so we think it would be fairer for the parties to fight and if you believe you are right then you should be willing to go to the court and know that if you lose, you pay. The people who are doing this illegally, I think, will drop out because they are not going to want to pay because they know they do not have a claim.

Chairperson: Thank you. May I ask you a question? It is a question on the mechanics of pre-payment, one of the things that you recommended was that there should be a rule that if you do not prepay or you do not activate the domain name until such time as payment is received. Mechanically, how do you envisage that working, as I understand it, we will have registries and multiple registrars and I imagine that there will be some arrangement between registrars and registries whereby there is perhaps a deposit account with the registry for particular inlet ISPs who are acting as registrars, they may prepay a certain amounts. Where will the contractual relationship about the payment come into play which can cause the registry not to activate the domain name?

Ms. Deutsch: I think there would be a couple of options, one would be, as you said, to open a deposit account and you simply would debit your deposit account the way you do at the PTO today. You would have the funds there and you would have prepaid. I think there should be options for charging it, you know with electronic commerce the way we are developing payment systems today it seems to be relatively easy, the same way amazon.com does not send you a book before you pay, we can, I am sure, work out the mechanics of payment.

Chairperson: Yes. I wonder if you could just give some thought to that at some stage because it is something we would need to address if that were an option that were to be considered and it is a question, really, of where the economic burden lies for this: on the registrar or on the registry in respect of the non-payment. Mr. Ken Fockler please.

Mr. Fockler: I heard you say for new top domains to go slow but I think I may have missed a sentence or two before that, did you have a comment or opinion about whether there should be new top level domains or you expect them or will help or hinder?

Ms. Deutsch: Well, what I am personally hoping is that we get some of these, that I view the WIPO process as critical and I see what you recommend is critical and if you can get into place some of these principles like prepayment and banning cybersquatting and other practical means to help the trademark owner then I think we could add one or two as an experiment to see what happens but just to add them now on top of everything with no other relief, I think would be a mistake.

Mr. Fockler: So, process first.

Ms. Deutsch: Right.

Mark Partridge: I have a couple of question on how a waiting period might effect different interests. One question or one concern that has been raised about a waiting period is the risk that legitimate domain name claimants might face from people who would oppose simply to hold the domain name up for ransom and hoping to receive some payment. So, in addition to the cybersquatting we could face a new kind of problem. Another concern is, can we find a way to accommodate legitimate domain name users who are seeking to use the medium quickly for political purposes or other kinds of non-commercial purposes. Can you accommodate those interests without a waiting period?

Ms. Deutsch: There may be a few creative solutions around this. One, would be maybe to grant people immediate registration if they pay maybe more money up front, or a bond or something. I think that could get them on the books quicker than the people who are willing just to go through the normal process and I do think that there should be severe penalties built in somewhere for people who would misuse this process, including punitive damages and whatever other very harsh deterrants there would be to make sure that people do not do that kind of mischief but it is a very difficult issue, I realize that.

Chairperson: Mr. Don Heath please.

Don Heath: I wonder if you could elaborate a little bit more on the creative thought you had regarding the take-down, could you go over that a little bit more?

Ms. Deutsch: Sure. I was part of a process for the last three years as a service providers trying to get out of liability from the copyright community, who wanted to hold us lible for third party copyright infringements that went over our telephone systems and we worked out a solution which is now in a legislation that is in Congress and maybe will pass this year where we agreed to take some steps to help the copyright owners take their materials down from our websites. In exchange, we are given a limitation on our copyright liability and it gives us a lot of business certainty that we are not going to be the deep pocket for all infringements, and at the same time, we are helping the copyright owners through this process of notice and take-down. Basically, what the copyright owner does is fill out a form with about 18 elements telling us, you know, that they have got a copyright, that it is being infringed, where it is being infringed, there are probably 10 or 12 different elements they have to send in and when they send that in, we take the material down from our server and we think it will work very well to help them and it will also help us. And I think a similar principle could apply, just for cybersquatting, not for all other domain names, but if we come up with the indicia, what the criteria are for cybersquatting, submit this to the registry, agree to a registrar, agree to indemnify them. It should really be a no-brainer that they should take this down.

Don Heath: Are you suggesting that ISPs or people who provide web sites or server capabilities should, if a trademark owner or intellectual property owner requests or shows proof that their mark or their copyright has been infringed, that then the ISP or the service provider would take it down.

Ms. Deutsch: Oh yeah. I mean that is what the whole industry agreed to and basically we found the same thing worked very well with the satanic cult I was telling you about. They were using one of our trademark on an ISPs website and the ISP had a policy against infringing trademarks and we simply wrote to the ISP, showed what they were doing, showed them how offensive the content was and they took that page down from their server.

Don Heath: And with regard to registrars or registries, I guess you would cover that through the preemptive or proactive challenge before were used, right, a domain name registration.

Ms. Deutsch: The Proactive Exclusion?

Don Heath: Yeah.

Ms. Deutsch: That would help part of it but they could simply change, you know, there is always going to be ways to get around the proactive exclusion, they could change your name in such a way that it does not get picked up and so they get through, but they are still cybersquatting and, you know, if I give the registrar a hundred examples of other famous marks this person has taken, I think it should kind of be a no-brainer that that registrar would take those people down.

Chairperson: May I follow up on this also with one or two points? So, as I understand it in the copyright on-line service providers scheme, the decision, the take-down decision is, you have just said, made by the ISP, if you provide the 18 elements then it is the ISP that takes it down. What happens then, that is to say, if the party whose website has been taken off has a disagreement with the decision, what are its options?

Ms. Deutsch: There is a provision in the legislation that if the material was taken down by mistake or let us say a competitor was playing some games and did you some harm, you could get your material put back up. At that point the matter would probably go to court and there is also a very severe penalty built into the legislation for people who maliciously use the process for false purposes.

Chairperson: Right, so, given that we are probably talking about a contractual solution here, as opposed to a legislative solution which was possible in the case of the copyright on-line service providers. If it is a contractual provision you could not, it is difficult to imagine, include a penalty provision for misuse, abuse of the process.

Ms. Deutsch: That is right, but on the other hand, with the copyright, you are really not sure that the person is the owner, it is not easy to search, but with cybersquatting, if I send you 100 records that show these people own all sorts of names, it is not too far-fetched to imagine that they truly are a cybersquatter. The chances for mistake with this limiting it to cybersquatting, I think, are very narrow.

Chairperson: Yeah. And now what is going to be my other question is: how would you define cybersquatting when looking at these 18 elements that have to be provided before and ISP takes the action, or the registry acts on a recommendation of an ISP, what sort of criteria would you establish to define what is cybersquatting?

Ms. Deutsch: I think there should be a numerical threshhold probably, either the same person or, for example, if you look at our Exhibit B, you will see that somebody has registered bagte.com, atlanticgte.com, gteatlantic.com, gtebell.com, all the owners are listed as the same names as the domain names. So, you might not know that that is a cybersquatter but when you do an address search, it all comes up as the same address, so the numerical threshold combined with some sort of linkage to the same entity but it does not have to be by the same name, I think would be good proof that they are a cybersquatter, combined with what you find in terms of the indicia for famous marks and if you are getting a number of famous marks on that list, you are going to get some clue.

Don Heath: What do you think a number, I know we cannot be exact in this but, would you say that number, if you are going to quantify the number of names that somebody may be hoarding or cybersquatting, would you prefer or would you think it should be fairly low or middling or fairly high or low, less than ten say or even less than five, middle, say ten to twenty?

Ms. Deutsch: Probably in the middle.

Chairperson: I am sorry to keep repeating the person's name but I am thinking of the typist in one week's time. Frederick Mostert please.

Mr. Mostert: To pick up on those last two questions in your previous statement about 50 incidents of cybersquatting should be enough to prove that a mark is famous or well-know, as a practical matter, how would you have that threshold work in terms of evidence, providing evidence, would you just have a list with simply 50 dead-heads or, as a practical matter, how should one ideally present evidence before you can get the threshold of showing a mark is famous or well-known?

Ms. Deutsch: I think you should, well I would say that this is in addition to other indicias, not by itself, but assuming everything is equal, the fact that somebody has taken your mark this many times shows that there is a market value for it, it must be famous otherwise they would not be cybersquatting and I think it, you know, if there was a name that you were not quite sure whether it was famous and you found 50 or 100 incidents of cybersquatting it, it would be very clear and the evidence you would submit would be the records from the registry, showing it was taken and, of course, if some of the cybersquatters had also taken lots of other names along wiht it, you would want to provide that to show that this was a pattern or practice, not just some individual who happened to erroneously take your exact name. We usually find that cybersquatters are not just taking one or two marks, with our Private Sector Working Group we find that the same group of people are stealing all our marks so it really is much bigger than a single incident.

Mr. Mostert: If I could just pick up on that last point, you also suggest, in other words, that as in the physical world, in the real world where bad faith sometimes is a factor to infer the fact that there is a taking and that the mark is well-known, would you suggest the same principles apply?

Ms. Deutsch: Yes. I would, I think that is exactly right.

Chairperson: Right. Now, I will take one more speaker or commentator on this issue and then I am afraid we are going to have to move on. Mr. Ken Fockler please.

Mr. Fockler: Yes, we do have to move on but I am on but I have followed the notice and take-down procedure and I think the Canadian Association of Internet Providers is pursuing the same matter because you have to do it within your jurisdiction. It makes me wonder why can you not move forward with the same thing right now with these situations? Why could you not have pursued a notice and take-down procedure legislation for these situations, achieve some legislation, I guess you have one entity to deal with names NSI, why do you need, do you need a WIPO recommendation, do you need some other action? I am just sitting here drawing the parallels between the notice and take-down on the content and copy and this and saying what is preventing you from going ahead and trying to achieve the same thing in this situation?

Ms. Deutsch: It was very contentious. It took three years and fights at the World Intellectual Property Organization, holding up two bills in Congress, it was nasty. We would love to just work constructively on this process and move forward and we do not just have NSI, we are soon going to have all sorts of registries and so it is very important that there be a uniform set of recommendations that comes from WIPO on this.

Mr. Fockler: But we could be moving to that same, just parallels. OK.

Chairperson: I think also, you need either a legislative or a contractual basis. I did say only one more but the gentleman down the back has been very patient so the last one please.

Hugh Latimer: My name is Hugh Latimer, I am in private practice with Wild & Fielding in town here and I come at this from the same direction that Sarah does, trying to defend or stop hundreds of trademark infringements so perhaps I am a little biased on this whole question but maybe this is more for the panel, is there really a need for more generic top level domains? That might be a naieve question but maybe somebody could explain why there is any need for that at all.

Chairperson: Sarah please?

Ms. Deutsch: Well, I agree! I do not know why either. I think you have to prove there is a need. Like I said, I mean, are people really, are these really opening up new name spaces? Who is going to study that? Are there going to be numbers to show that people are going to the new name spaces and it is freeing up all the imprisoned names that were formerlly not available? And how many cases of infringement are occurring? That is, I think, very critical as a follow-up study for WIPO.

Chairperson: Thank you very much, Sarah Deutsch for what was an extremely constructive and thoughtful contribution. We will now move, if I can just let you know the programme, we will now hear from Mr. Bob Connelly from the Council of Registrars from Core and then Christopher Gibson, my colleague, had indicated that we would hear from Mr. Scott Evans and Mr. Harold Feld which would be after the coffee break. We have two more registrations for speakers, one of whom is Michelena Hallie, who has come from New York as Senior Counsel, Vice President for Intellectual Property of Viacom and, with the permission of Mr. Scott Evans and Mr. Harold Feld, I would take that person as 3 and move you to four and five. So, Mr. Bob Connelly and while you are on your way, may I introduce Professor Michael Froomkim whom I introduced in words earlier and who has subsequently arrived. I am sorry we do not have a seat for you here, yet. Mr. Bob Connelly, sir.

Robert Connelly: Thank you. So, I echo Sarah's appreciation for WIPO making these opportunities for public input on the proposals. I spoke at Sanford having heard only five days before that there was to be a meeting and subsequently had the opportunity to study the RFP, number 2 and have now recorded, in paper, what I gave extemporaneously at the prior meeting and, appended to sections, references, RFC 2-14.2 would refer to your paragraph 14.2 so that they can be tracked against your RFP. I mentioned in a prior meeting that when I learned first of the work of the International Adhoc Committee (IAC), I learned of it February of last year and just about that time saw the first iteration of the WIPO proposals and I saw them to be a very good step forward and what Sarah has referred to as proactive, I have referred to as preemptive exclusions. I considered these to be really the centerpiece of the IAC propals and without it, I do not see how things can advance in an orderly fashion. I somewhat was amused by your distributing the white pages and then expecting you to come forth with the yellow pages before you were done but as someone who is receiving registrations, I should say applications at this time, I know that they are all out there, the cybersquatters are out there in force. I will skip through my written text and I have given Christopher this copy of my comments so that he can go down correctly. I saw something, some e-mail was passed to me, a summary of the Sanford Meeting and said, excluding the first hour, which meant to me that the recording did not work so I felt that it was necessary to come again and to make sure I got recorded. If the other was not true, why nonetheless I have been able to append the relativity of the portions of references to the RFP 2. I have been very much involved in the intellectual property issues in Japan, I have been in Japan 27 years now. My firm, ............................. Services International, I refer to as the elder PSI, the PSI initials are well-known on the Internet, as our my initials, RFC quite by coincidence. I cannot emphasise enough that the preemptive exclusions are very important and I hope that if this process which is undergoing here is not going to be concluded until March of next year that if any new gTLDs are delegated to CORE that there be some interim procedure for a similar type of thing. I believe such was promised to the Disney people at meeting related to the Green Paper and White Paper and how that will be done I do not know because I have not seen anything further on it within my own distribution, e-mail system with CORE. I would like you all to recognize that CORE is done by a memorandum of understanding, each registrar has agreed to this memorandum of understanding and many of the points which you have mentioned Sir are covered in that memorandum of understanding. For example, CORE shall establish and enforce requirements that registrars shall not register as SLDs, for their own account or the accounts of an affiliate, for the purpose of trafficking and SLDs for sale, resale or transfer to applicants and I have referenced that to paragraph 14.5 for example. You mention fees, CORE shall establish and enforce procedures and requirements for the payment by registrars of the fees specified in article such and such before registration of SLDs, whether this passes on upstream to the actual registrants is a business decision for the registrars and one with which we are all very concerned because we do not want to be holding the bag for people who are cybersquatting and then do not actually pay for the domains that they have taken out. Each registrar shall enter into registration agreements and accept applications for the SLDs only on forms containing at least the requirements for information and legal language set forth and that includes a statement of intended use and that the applicants must have completed the form, no discriminatory conditions to assigning them, the applicant acknowledges that by virtue of the provisions of the gTLD MoU any third party may challenge the assignment so the ACPs are in our bible under which we operate. Registrars, of course, shall cooperate with WIPO center by promoting, by promptly providing any information materials required. I presented to the panel at the meeting in Sanford this document which is the WIPO interface for our shared registry system so everything which is required by the Appendix C of the MOU has been considered carefully and necessary information stored in the SRS and provisions are made for WIPO to make any necessary changes removing names etc. You mentioned the uniformity of rules and this is something which has not been discussed, it was not discussed at the Standford meeting but I firmly believe that all, certainly all gTLD registries should have a set of rules coming down hopefully from the new corporation, whatever we call, the new Iaona or Icann that there should not be an opportunity for there to be a difference between registries and thus encourage cybersquatters to shop the market for where they can get away with something, we should all be playing by the same rules. I would suggest here that, in my opinion, Icann should tell all registries you cannot engage in any practices different from the rules Icann establishes. The question of out of date or deliberately incorrect data in the database was brought up by almost every speaker at the last meeting as you have done. I propose a suggestion here that this should be relatively simple for the registry to ping on a period basis, once a week, once a month, the domain given in the electronic mail address of the administrative contact, the billing contact, the third contact being, yes, payment so that that can be verified also the primary and secondary DNS and if a sufficient number of tests prove bad there should be an amber light above some threshold a red light and a corrective action required. It would even be possible to have a robot telephone call made to telephone numbers to make sure that they are real and if they are not real again light a red light so that an administrative intervention will have to be made. Certainly, this was clear from the Porsche, that he had over 190 cases, many of which he could not track down. In that same regard is that we have thought of terms of proactive or preemptive exclusion and when I began to see the kind of things which the Porsche people were complaining about, let us see if I can give you the examples here; one began with a 46porsche another one was part4porsche. I would think that it would even be possible to test the string that is being applied for, for the presence of a string of letters which are subject to a proactive exclusion, for example, if it were Porsche and that was already set up as a preemptive exclusion that at the same time it would be possible to then make a test like you would make an end string test in any one of the programmes, computer programming languages and if you find that, at least require an administrative action before that would be listed, for example, the GTEs that you mentioned, if there were a proactive exclusion of GTE you would not have to then say think up everything else that somebody might think of but it would at least not necessarily prevent it but it would require some justification if that string appeared. The same thing would be done, I would think, in the way of which trademark watch services operate, they look alike, sound alike, that these might be also subject to the preemptive exclusions. There are some things which CORE has done which we were not required to do and I think they do show you the calibre of the people who are running CORE. Some of the members of CORE wanted quantity discounts, they argued that, well, they could get 800 number minutes, if they bought a million minutes they could get a good price. Or, you know, you could get seats in a plane or on a theatre. Others have argued that each domain is really a unique resource and they are not subject to comparison to minutes or seats at the opera, we took a vote on this and we voted unanimously no quantity discounts to CORE registrars. In same way, the larger registrars are lobbying for a flat fee for a month for all registrations, some of us felt that would be unfair to small registrars, especially in less-developed countries which would render them uncompetitive and since one of the plans for the IAHC was to have regional diversity, that this would be inappropriate and we vote that and so our fees are all on a per registration basis. One last item, on the round robin idea, those who have large queues of maybe duplicated words that wanted to have any turn rejected, any rejection to have a second chance, third chance, fourth chance and we vote overwhelmingly that a failed attempt was a failure and they would pass over to the next chance. So, thank you very much and you have this all in writing this time.

Chairperson: Mr. Bob Connelly. Thank you sir. Are there any observations or questions that anyone would like to address to Mr. Connelly? Please, Cathy.

Catherine McGuffy: Hi. I am Catherine McGuffy from MCI Worldcom and I just wanted to get a clarification. When you were mentioning about, for example, your Porsche example where, you know, parts for Porsche and things like that, were you inferring that that would be included in the cybersquatting or were you talking about the checking? Could you clarify a little bit because one concern I would have is if we were to have that as a criteria that any use of a mark might be considered cybersquatting that we might perhaps be expanding upon what is considered traditional trademark infringement. So, if you would not mind just clarifying that point please.

Robert Connelly: We are dealing primarily in the field of, and I ........... in my text use the word "famous trademarks", I have avoided using "well-known" trademarks. They are different. Mr. Mostert can explain it to you, he wrote a whole book about it but if it is indeed a famous mark and the WIPO has agreed it should be preemptively excluded, I am suggesting that the presence of that string of characters in a domain would at least cause some administrative action to be made before it was actually registered so that if we determined that it was not being done inappropriately. I can imagine that the Porsche dealer in Newport Beach a proper person to say "Newport Porsche" I do not know that but what I am saying is that it is possible to pause in the registration process once one recognizes that something a famous mark is in included in something which is being applied for.

Chairperson: Thank you. Any other observations or questions?

Marc Partridge: Let me just follow up on that, it is Mark Partridge, Mr. Connelly then if I am following if in instances where there were legitimate conflicting interests we would not be, because of the preemptive exclusions, grating trademark owners greater rights than they have in the non-Internet world. We would simply use that to trigger an examination and so we could accommodate, for example, the legitimate uses of a family name say McDonald, or legitimate protest uses such as "NotMcDonalds.com" or something like that.

Robert Connelly: I would think so. The WIPO documents, as originally prepared, contain both general and specific so that, for example, a general exclusion would cut accorss all whatever the number might be, one, three or seven top level domains or a specific might apply to only one area, for example, something in the theatre area might have a specific exclusion under arts and yes, there would be some decision made when an attempt was made whether it was an existing preemptive exclusion to bring it down in the specific case.

Marc Partridge: One follow up on that. At that point, who do you suggest makes the decision. Should we have the registrars or the registries or should there be some independent body that would review this, examine this when the preemptive exclusion is triggered.

Robert Connelly: we registrars are not permitted to make any decision of that type. So it would be handled at something like a WIPO level.

Chairperson: Mr. Philip Sbarboro please.

Mr. Sbarboro: Thank you Francis. Bob, on your suggestion that a statement of purpose be listed are you contemplating human review of these applications?

Robert Connelly: We, certainly, as registrars are not permitted to, but that becomes a part of the record for WIPO to examine or anyone to examine who is saying "why did this person apply for this?". But it is part of our requirements, this is not something we generated, it came down to us from above.

Mr. Sbarboro: And what is a court imputes the knowledge of that purpose to you as a registry or registrar?

Robert Connelly: Would you say that in English?

Mr. Sbarboro: Sure. And I apologize because I have been on the other end of that bullet. If Sarah Deutsch puts down the purpose of registering "BellAtlanticSucks" and she puts down that I have put down for my first amendment rights, that is a whole lot different than taking "GTE.com" and putting down some obscure purpose that is not true, I mean if the rest of the application is not true, you can bet that purpose is not true, that the court is going to say that the registry or the registrar, the knowledge of that purpose listed on that application is imputed to you, so if that person is cybersquatting or deluding or infringing, you are contributing to that delusion or infringement. So, I am wondering if as these applications come in, if you are going to have a staff to review the purpose line?

Robert Connelly: We are told that we are not to. That this is, to any extent that we make a decision on one and miss another we would be in a spot that I guess Compuserve has been in.

Chairperson: I will take, yes, perhaps Mr. Don Heath and if there is one other and then we will break for coffee. Don Heath please.

Don Heath: Let me put some words in your mouth and see if you could agree. Would you recommend that registrars be excluded or preempted if you like from what Phil Sbarboro brought up, such that they collect the information but if a dispute arises that that simply becomes and that they turn over to some authority, whether that is a court or a WIPO process, and therefore they are nothing but an innocent third party in the process that does not have that liability imputed to them by any authority.

Robert Connelly: That is certainly our hope, I think NSI has had occassions where they have been determined to be an innocent third party so, perhaps it might obtained. Was there another question from the audience?

Chairperson: If there is another question or observation? There being none, I thank you Mr. Bob Connelly.