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Afilias Enlists WIPO's Help to Settle .info Disputes

Afilias, the registry consortium formed by about 20 domain name registries, has entered into an exclusive agreement with the World Intellectual Property Organization (WIPO) to help resolve any disputes arising from the newly assigned .INFO top-level domain (TLD) during the early stages of its upcoming rollout.

Afilias last week finished up negotiations with the Internet Corporation of Assigned Names and Numbers (ICANN) to operate the new .INFO TLDs. To begin the rollout, Afilias is giving trademark and servicemark holders the right to reserve their exact marks in the .INFO domain during the first 30 days -- a phase called the "Sunrise" period -- before opening the doors to the public.

But given WIPO's history, some scholars and observers feel the Afilias/WIPO combination will hinder, rather than help, the distribution of new .INFO domain names depending on their resemblance to trademarks.

"Trademark infringement all depends on how it is used," professor Milton Mueller of Syracuse University's School of Information Studies told InternetNews.com. In previous cases, Dr. Mueller found that "trademark holders were trying to take away the names from legitimate [domain name] holders."

In 1998 when cybersquatting caught the public limelight, Dr. Mueller penned a study that was highly critical of WIPO. "The study concludes that in the domain name arena, property rights in trademarks are being pushed beyond the bounds established in law."

WIPO is currently one of only a handful of organizations approved by ICANN to administer the Uniform Domain-Name Dispute-Resolution Policy (UDRP), which governs how domain name disputes should be resolved. These so-called UDRP service providers adjudicate the disputes but rulings have varied widely in terms of precedence as evidenced by recent cases involving Madonna and Bruce Springsteen.

"The UDRP decision is not binding upon the court, thankfully, because the decisions are anything BUT uniform and are not grounded in statutory law...Afilias has created another layer for dispute resolution," said Ellen Rony, a noted ICANN observer and co-author of "The Domain Name Handbook."

But now WIPO, based on the new Afilias arrangement, will be the only party able to resolve disputes concerning trademarks (or servicemarks) during the so-called Sunrise challenge process. "Through this association, we feel the rollout of .INFO will significantly reduce the potential for trademark abuse in the .INFO domain," said Francis Gurry, director of the WIPO Arbitration and Mediation Center.

And based on a separate recent study, Dr. Mueller predicts the arrangement with WIPO spells further legal woes for individuals holding domains that bear resemblance to trademarks. According to his November 2000 study, the professor found that WIPO rules in favor of the original domain name holders more than 80 percent of the time.

By opening up the registration process to trademark holders before the public, "Afilias is trying to give trademark owners prekmptive rights over names regardless of how they are used...they are bending over backwards to show they are trademark-friendly -- subordinating the rights of individual users over trademark holders," Dr. Mueller said during a telephone interview.

"Outcomes for the [defendant] are higher with WIPO than any other UDRP provider and, not surprisingly, WIPO has the largest market share of cases," Rony concurred via e-mail.

But to WIPO's credit, Afilias officials believe the arbitrators have the experience to enforce policy properly.

"This is just to kick out registrants who don't have legitimate right. We're not trying to give trademark holders the carte blanche to register any domain name. We're just giving them the rights to register their exact mark," explained John Kane, marketing task force leader at Afilias.

To commence .INFO operations, Afilias is still awaiting final approval from ICANN, which is expected later in May. The "Sunrise" period will begin within 45 days of the contract ratification.