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Legal Department


Département juridique

E-mail: (direct from WIPO site) WIPO Arbitration and Mediation Center

Sender telephone: 4122 717 2505 34 chemin des Colombettes

No. of pages: 2

CH-1211 Geneva 20

DAJ 01-257

mtp 27 April 2001

Dear Sirs,

ccTLDs Best practices

for the Prevention and Resolution of Intellectual Property Disputes
As a legal representative of the European Broadcasting Union, defending the intellectual property interests of 70 national broadcasters in 50 countries of the European Broadcasting Area, I strongly support the general principles that are outlined in the above-mentioned document of 20 February 2001.
In particular, the collection and availability of (correct and updated) registrant contact details is, in fact, not only crucial but also indispensable for an efficient domain name registration system. Having been involved in several past and pending investigations of bad faith domain name registrations of the EBU's own registered trademarks, such as "Eurovision" (see e.g., I have noted more than once that some ccTLD registrars are unwilling or at least very reluctant to provide the information necessary to contact the relevant registrant. This makes it virtually impossible to investigate properly the concrete circumstances of the registration and/or use of what is thought to be a conflicting domain name, let alone enforce intellectual property rights in case of unlawful cybersquatting.
Moreover, concerning the scope of the UDRP in the ccTLD context, I should like to emphasize that it should be possible for, and preferably recommended to, ccTLD registrars to adapt the third condition of the UDRP in the sense that the term "and" (between registered and used in bad faith) can be interpreted as "or". It has already been demonstrated in certain WIPO panel decisions that a domain name can be used in bad faith whilst the name itself may have been initially registered in good faith. However, situations have also occurred where the actual use of a similar domain name does not seem to be in conflict with prior trademark rights, but the circumstances clearly indicate that the registration was initially made for cybersquatting purposes, so that the actual use is merely sham website content with the purpose of creating a smokescreen to mislead the trademark owner as to the user's true intentions (and which can be pursued at any time). If a mala fide entrepreneur were to be allowed to escape from liability for the bad faith registration of a

domain name by simply setting up a fake website for the domain name concerned after being contacted by the trademark owner, both trademark law and the UDRP would run the risk of being deprived of much of their effectiveness to combat unlawful cybersquatting. Consequently, as a matter of principle, such practices should not be tolerated.

There are other practices which, in my opinion, give rise to substantial concerns for trademark owners, including the EBU. It seems that some commercial registration service providers have created an opportunity for anybody to register any top-level domain name via their services, free of charge, on condition that if the registration is challenged by a trademark owner it will be disabled and the registration service provider will be entitled to sell and transfer the domain name registration in question to that particular trademark owner. Even when the transfer fee involved does not seem excessive (e.g. $99 per domain name), it would nevertheless be quite profitable if there are large numbers of names involved. Such practices are not only intended to bypass the current provisions against unlawful cybersquatting but are also misleading vis-à-vis potential registrants with bona fide intentions (for example, minors) and put an unnecessary burden on owners of prior trademark rights.
The recommendation of adapting the UDRP by replacing "or" for "and" in the third condition may not be new. Indeed, it was also made explicitly in a footnote in the paper version of the above-mentioned document, but it does no longer seem to appear in the version made available on your website at main grounds for omitting this reference may be found in the suggestion that it would seem to be in the nature of a "substantive law" issue which does not directly touch upon the responsibilities of ccTLD name registrars. However, it cannot be denied that insofar as the UDRP attempts to prevent clear cases of trademark abuse, there is an immediate relationship with any "Best Practices" code for such registries.
For the foregoing reasons, I would strongly advocate that such a recommendation, perhaps outlined in greater detail, should be incorporated into the body of the document. Failing that, it should at least be integrated into any recommendation of the Second WIPO Internet Domain Name Process.

Yours faithfully,

Heijo Ruijsenaars

Legal Adviser

Legal Department

Ancienne Route 17A - Case postale 45

CH-1218 Grand-Saconnex GE – Switzerland/Suisse

 (+41 22) 717 2505 - Fax : (+41 22) 717 2470

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