Trademark owners want more than the current system: They're demanding immediate injunctive relief and a wider scope of allowable challenges.
"Our brand is our identity," says Marilyn Cade, director of Internet and e-commerce policy and advocacy at ATT (dossier), which wrestled Attt.com from the operator of a pornography Web site. "If we're letting people misuse our brand by posting fraudulent or pirated or porno sites, we're allowing our brand to be diluted," she says.
But consumer advocates argue that the trademark community has been using the dispute resolution system to trample the little guy. "They need to have some pro-consumer guidelines to avoid some of the abuses against the public," says James Love, director of the Consumer Project on Technology, who believes the decisions are rife with contradictions and need to be reviewed. Love says that many of the disputes over domains would be resolved if ICANN increased the number of top-level domains.
"You could have a .fans or a .sucks domain or you could break them down into different industries so you wouldn't have confusion between the sports team Penguins and someone who publishes books," he says.
Others argue that the arbitration system should be replaced by a jury system since one of the key elements is whether a domain name was registered in bad faith. "Bad faith is not something they teach you in law school," says David Post, a law professor at Temple University who is involved with WIPO competitor eResolutions.
The criticism of the rulings comes at a time when WIPO, which has played a key role in developing ICANN's dispute resolution guidelines, wants to expand the definitions of what constitutes cybersquatting - and hence the types of cases that organizations can arbitrate. WIPO is now focusing on expanding into a few key areas - rights to personal names (such as George.com), names and acronyms for public organizations (WIPO, for example) and scientific names for things like pharmaceuticals.
The deadline for public comment is Sept. 15; hearings around the world will follow. "We're trying to examine to what extent the world of virtual identifiers can be made compatible with real-world identifiers," says Gurry.
Some observers argue that it's too soon to start expanding the types of domain names that can be considered in the dispute-resolution system. "That debate belongs in Congress," says Michael Froomkin, a law professor at the University of Miami who consulted with WIPO during the first round.
But Harvey, twice disappointed, says the corporations already have too much pull. "WIPO is king," he says. "They answer to no one."
Wal-Mart, on the other hand, considers the process successful in preventing its good name from being hijacked by the Kenneth Harvey's of the world.
It's not about free speech. It's about trying to prevent the kinds of abuses that Mr. Harvey has been accused of," says Andrew Pelletier, public affairs director for Wal-Mart Canada. "He was clearly registering the name in order to extort money from Wal-Mart."
