General Counsel's Briefing Concerning Letter Received from WIPO Concerning Second Internet Domain Name Process
7 March 2003

General Counsel's Briefing Concerning Letter Received from WIPO Concerning Second Internet Domain Name Process

To the Board:

We recently received a letter (dated 21 February 2003) from Francis Gurry, Assistant Director General of WIPO, concerning the results of the WIPO Second Internet Domain Name Process. The text of the letter has been posted.

The Second Internet Domain Names Process was initiated by WIPO at the request of 20 governments in June 2000. It follows on from WIPO's First Internet Domain Names Process, which concerned procedures regarding domain names (including the UDRP) that addressed issues raised by trademark principles.

The Second Internet Domain Name Process evaluated whether procedures should be instituted to address domain-name issues arising in connection with personal names; International Nonproprietary Names for Pharmaceutical Substances; names of international intergovernmental organizations (IGOs); geographical indications; indications of source or geographical terms; and tradenames. After various consultative processes within WIPO, the WIPO member states recommended that two categories of identifiers should be protected against abusive registration as domain names, namely, the names and acronyms of IGOs and country names (being one particular type of geographical identifier). Some member states disassociated themselves from one or both of these recommendations.

Under the New Bylaws, the WIPO recommendations would be treated as external advice subject to the provisions of Article XI-A, Section 1. Because the WIPO process began long before the New Bylaws were adopted, the relevant provisions concerning ICANN's request for such advice were not followed. Nonetheless, the New Bylaws provisions concerning the receipt and consideration of expert advice are relevant. As stated in Article XI-A, Section 1(5) and (6):

5. Receipt of Expert Advice and its Effect. External advice pursuant to this Section shall be provided in written form. Such advice is advisory and not binding, and is intended to augment the information available to the Board or other ICANN body in carrying out its responsibilities.

6. Opportunity to Comment. The Governmental Advisory Committee, in addition to the Supporting Organizations and other Advisory Committees, shall have an opportunity to comment upon any external advice received prior to any decision by the Board.

In view of these provisions the WIPO letter should be referred to the directly responsible supporting organization and advisory bodies for their analysis and recommendations; and the other supporting organizations and advisory committees should be notified of the letter and invited to provide any comments they may have.

Best regards,

Louis Touton
General Counsel

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