The proposed ACP process has the potential to offer a quick, efficient
and inexpensive dispute resolution for blatant infringement such as
domain name trafficking, and domain name speculation. Whilst I remain an
advocate for ensuring the threshold for access to the ACP process is not
too restrictive, it is equally important that the significant powers of
suspension or removal of a domain name are not applied without careful
consideration. In many cases the issue may be "clear-cut" but in others
complex. Therefore, I propose that either the domain name owner or the
challenger reserves the right to request the ACP Panel be comprised of
three members. The additional cost of appointment being borne by the
requesting party.
A balance must also be drawn between the large corporations holding many
international trademarks and smaller trading entities in unrelated
market sectors who have the right to co-exist with their "namesakes".
The pro-active exclusion of a domain name from all of the gTLDs named in
the petition must always be subject to review and modification upon
request of any party. It may be prudent to specify in the guidelines
that prior right does not grant additional protection. The number of
"unique" names to which pro-active exclusion may be applied is very
small, and the threshold for entry to this "unique" group should be very
specific and certainly considerably higher than that proposed in the
revised guidelines.
The Appeals process. If a procedural error has occurred an appeal
within the ACP process may be appropriate, but either party should
reserve the right to have their appeal heard before a court of
appropriate jurisdiction. If both the Domain Name Owner and the
Challenger reside in the same country the appeal may be heard in that
jurisdiction, with the Appeals Panel simply directing CORE to implement
the Court's determination. If the parties reside in different
countries, an Appeal in the jurisdiction in which CORE is registered may
be appropriate.
In conclusion, it is very appropriate for WIPO to contribute to the
protection of intellectual property on the Internet through the
provision of services for resolving domain name disputes. The provision
of on-line Mediation, on-line Expedited Arbitration, and on-line
Administrative Challenge Panel Procedure combined with National Courts
will foster consumer confidence and domain name certainty on the
Internet.