To: Fay Howard
CENTR & Interim ccTLD member of the pNC
July 30 1999

.NZ RESPONSE TO THE PRELIMINARY REPORT OF THE WG-A ON DOMAIN NAME DISPUTE RESOLUTION PROCESS  –  8 JULY 1999

INTRODUCTION

Thank you for the opportunity to comment on the WG-A Report.  We would like to record our concern over the extremely short timeframes allowed for responses to this report. We note that this seems to be a trend continued with upcoming reports on the agenda at the DNSO web-site (http://www.dnso.org/ ).  We will return to this point later in this document.

SUMMARY

i.	.nz  requests that the WG-A report be withdrawn and re-presented once the legitimately elected DNSO Names Council has been constituted.

ii.	.nz requests that the WG-A report be re-opened for comment until the end of August in order to allow proper consultation with stakeholders to take place. 

iii.	.nz has repeatedly argued against any mandatory disputes resolution process. 

iv.	.nz has repeatedly argued against a focus on cybersquatting/”abusive reservations”

v.	.nz argues that the determination of the rights of Trade Mark holders should be subject to the normal process of International Treaty or Conventions (e.g. WIPO) and not given arbitrarily imposed ‘rights’ in cyberspace

vi.	.nz opposes recommending the implementation of any part of the WIPO Report before the recommendations are worked through fully and all reasonable steps taken to ensure that the UDRP is workable, comprehensible, and fair to all parties.

vii.	.nz recommends that any review by WIPO of the WIPO Report submitted to the ICANN May 1999 Berlin Board Meeting include Internet experts and arbitration practitioners as full members of the review process

viii.	.nz recommends that any review by WIPO of the WIPO Report submitted to the ICANN May 1999 Berlin Board Meeting include Internet experts and arbitration practitioners as full members of the review process

BACKGROUND

The Internet Society of New Zealand [ISOCNZ] is a not for profit, incorporated society. Its membership is open. Membership subscription costs NZ$50 per year. A full description of the principles of ISOCNZ may be obtained at its website at http://www.isocnz.org.nz .

ISOCNZ has no affiliation or relationship with ISOC.

ISOCNZ is responsible for management of the ".nz" ccTLD. It has contracted the
management of this to its wholly owned for-profit company, the New Zealand Internet
Registry Limited, which trades as Domainz.

As you know .nz has had extensive involvement with the process associated with the creation of ICANN: 
i.	ISOCNZ monitored the formation of the IAHC and the MoU 
ii.	ISOCNZ monitored both the Green and White papers 
iii.	ISOCNZ made written comment on the Green and White papers   (see –
http://www.isocnz.org.nz/magaziner.htm )
iv.	Domainz also made submissions to the Green Paper   (see
 http://www.domainz.net.nz/newsstand/usgovt.html )
v.	ISOCNZ and Domainz were part of the Boston Working Group (BWG) submission to the US Government, late 1998. As the BWG submission was only one of two formal responses to the IANA draft that preceded formation of ICANN, NZ was involved in a number of audio conferences with Ira Magaziner and the US Dept of Commerce 
vi.	ISOCNZ and or Domainz attended three of the international meetings prior to establishment of ICANN  
vii.	ISOCNZ has, through Domainz, participated in the WIPO process, attending the Sydney meeting and presenting submissions in response to RFC-2   (see: http://www.domainz.net.nz/newsstand/wipo2.html ).
viii.	ISOCNZ made written submission on WIPO RFC-3  (see http://www.isocnz.org.nz/WIPOresponse2.html - attached)   [The New Zealand Ministry of Commerce made comment to WIPO endorsing ISOCNZ’s submission.]
ix.	ISOCNZ and Domainz attended March 1999 Singapore ICANN meeting 
x.	ISOCNZ had representation at the April 1999 FICPI/AAPA meeting, Wellington, New Zealand 
xi.	ISOCNZ organised a New Zealand National Summit on the proposed changes to the governance of the Internet arising out of WIPO RFC-3 and the ICANN Singapore meeting. A national position was created (see http:///www.isocnz.org.nz/nzposition.html - attached)
xii. 	ISOCNZ and Domainz attended the May 1999 Berlin ICANN Meeting and made representations on the WIPO recommendations (see http://www.isocnz.org.nz/nzoralicann599.html – attached)

PROCEDURAL COMMENT – PROCESS

.nz does not believe that the DNSO can legitimately deal with this report at all as it has not been properly presented to the DNSO Names Council. As the DNSO Names Council is only a Provisional Names Council with a Provisional Chair, it is not yet properly constituted and cannot validly either receive the report nor make recommendations to the Interim ICANN Board.

.nz therefore requests that the report be withdrawn and re-presented once the legitimately elected DNSO Names Council has been constituted.

PROCEDURAL COMMENT - TIMEFRAMES

As noted in the Introduction, the timeframes for response to the WG-A report are, we believe, needlessly tight and do not allow for proper consultation with our stakeholders.

It would seem that the further along the process of setting up a representative structure gets, the shorter the consultation periods allowed. This does not, in our view, accord well with either the democratic process, nor with gaining well researched, broad-based, consultation with stakeholders. 

An unfortunate side-effect of this is to risk mis-prioritising activities under the pressure of tight deadlines. We note that the US Department of Commerce is taking the same line with ICANN, stating that ICANN should get its organisational structures in place before creating policy. No case has been made to make the Domain Name Disputes Resolution Process a priority over other issues. To the contrary, the Berlin ICANN Board meeting heard strongly expressed opinion from participants that the Board should focus on getting membership structures implemented, and a properly elected Board in place, before even beginning to consider such important issues as the WIPO Report. 

One outcome of that meeting was for the ICANN Board to refer Chapter 3 of the WIPO to the DNSO for consideration. Now it would appear that the same process is happening again – before the DNSO is fully constituted, and before the elections for the Names Council have taken place, full DNSO recommendations are being sought by the Interim ICANN Board. .nz finds this totally unacceptable, especially given that the issues are highly contentious.

.nz therefore requests that the WG-A report be re-opened for comment until the end of August in order to allow proper consultation with stakeholders to take place. 

COMMENT ON THE CONTENT OF THE REPORT 

.nz takes issue with five main areas of the report. 

i. The first deals with paragraph three of the Introduction which states: 

”While some commentators have suggested areas where the WIPO process may be refined, nothing has been said that differs significantly from the conclusions drawn in the preliminary report, namely that the WIPO Uniform Disputes Resolution Process (UDRP) should be implemented on mandatory basis in respect of disputes involving cybersquatting or abusive/bad faith registrations.”

On the contrary, .nz has repeatedly argued against any mandatory disputes resolution process. 

ii. The second relates to the same paragraph in respect to a disputes resolutions process which focuses on cybersquatting/bad faith registrations. 

.nz has repeatedly argued against such a focus

iii. In point (1) of the Report reference is made to putting the recommendations of Chapter 3 of the WIPO Report “as soon as possible after the ICANN Board meeting in Santiago, Chile”. .nz is opposed to this on the grounds cited elsewhere in this document, and on the grounds that the definition of “abusive registration” in the WIPO Report presupposes the outcome of the UDRP, i.e., the Trade Mark holder is given presumption of legal right within the definition of the process, not only disadvantaging the other party, but also extending Trade Mark rights beyond any scope they have in the physical world. This is in line with the position taken  The New Zealand government in it’s statement has expressed its preference for determining issues such as disputes resolution and other related issues such as ‘famous names’ in international treaty fora (http://www.moc.govt.nz.

.nz argues that the determination of the rights of Trade Mark holders should be subject to the normal process of International Treaty or Conventions (e.g. WIPO) and not given arbitrarily imposed ‘rights’ in cyberspace

iv. In numerous places in the Report the WG-A notes that WIPO be asked to “revisit” or “refine” parts of the UDRP after it has been adopted and made mandatory. .nz feels that this is back-to-front. The recommendations should be refined based upon the submissions and comments received by the DNSO, re-submitted for comment by the stakeholders, and only once the process is in as refined a form as possible should it be recommended for implementation. It is much harder to undo a poor implementation than to create a good design in the first place, as anyone who works with computers or the law knows.

.nz opposes recommending the implementation of any part of the WIPO Report before the recommendations are worked through fully and all reasonable steps taken to ensure that the UDRP is workable, comprehensible, and fair to all parties.

v. Finally, in the Conclusion WG-A recommends “that WIPO should be asked to work with a panel of international intellectual property and arbitration experts in reconsidering these issues”. It is exactly this narrow focus on IP lawyers and arbitration theorists, without including Internet experts and arbitration practitioners, that has led to so many of the shortcomings of the WIPO Report. The WIPO ‘Panel of Experts’, comprised of people with genuine Internet “know how” and experience were ignored by WIPO, according to comments from at least two of the panel

.nz recommends that any review by WIPO of the WIPO Report submitted to the ICANN May 1999 Berlin Board Meeting include Internet experts and arbitration practitioners as full members of the review process

CONCLUSION

.nz appreciates the opportunity to comment of the WG-A report on the Domain Name Disputes Resolution Process. We have indicated the major areas of concern above, ranging from improper presentation of the report, through insufficient consultation times, and onto comments about the content of the Report. 

Overall, whilst we can see that a lot of work has gone in to the report, we feel that it has so many weaknesses that it would be better to withdraw the Report completely, and re-open it for comment until the end of August 1999. We will be writing to the US Department of Commerce noting their position that ICANN should get its organisational structures in place before creating policy, and suggesting that this approach should also be adopted by ICANN Supporting Organisations such as the DNSO.

Sue Leader
Executive Director
ISOCNZ

and

.nz Administration Contact 

On behalf of ISOCNZ