[Random-bits] Juliana Gruenwald on WIPO meeting on jurisdiction

James Love love@cptech.org
Fri Feb 2 00:02:05 2001


Intellectual Property Organization Stumped
By Juliana Gruenwald, Interactive Week
February 1, 2001 3:25 PM ET 

GENEVA - Government officials, intellectual property experts and others
agree that e-commerce, the Internet and other means of conducting
cross-border transactions have placed new pressures on efforts to
protect intellectual property but so far little consensus exists on how
to address the issue. 

The World Intellectual Property Organization held a two-day forum this
week to discuss problems such as this but made little headway in
offering solutions. 

Intellectual property protection has traditionally been based within
national territories. But which nation's laws should apply when a
trademark holder in France sues a company with the same trademark in
Germany for infringement because the German company has established a
Web site that is available to French consumers? 

"Today, the systems [for protecting intellectual property] can no longer
work given the global dimensions brought on by the Internet," said Andre
Lucas, a law and political science faculty member at the University of
Nantes in France. "Legal experts need to produce completely new

One approach that came under intense scrutiny at last-week's forum was
the draft convention being crafted by the Hague Conference on Private
International Law aimed at setting international rules for determining
the court in which foreign parties can be sued and when countries must
recognize the judgments of foreign courts. 

Following the WIPO conference, representatives from the Hague Conference
on Private International Law were expected to meet Thursday with
officials with expertise in intellectual property to discuss their
concerns with the draft convention. Hague officials plan to hold a
similar meeting with e-commerce experts at the end of February in
Ottawa, said Christophe Bernasconi, first secretary with the Hague

"We do not share the view that we do not take concerns [about the
convention's impact on e-commerce] into consideration," Bernasconi said. 

James Love, director of the U.S.-based Consumer Project on Technology,
argued that intellectual property should be exempted from the convention
because of the impact it could have on consumers. He claimed that the
draft convention would extend the range of over-reaching intellectual
property regimes globally, limit the scope of fair-use exceptions to
intellectual property rights and impose other limitations on consumer

Some argue that crafting a convention to address jurisdictional issues
will take too long and that alternative dispute resolution may provide
an interim solution. Francis Gurry, WIPO's assistant director general
and director of its arbitration and mediation center, said that it is
easier to bring two parties together to try to resolve a dispute than
for nations around the world to agree on a treaty. 

WIPO helped craft a policy instituted in late 1999 by the Internet
Corporation for Assigned Names and Numbers, the organization charged
with managing the Internet's domain name system, for resolving trademark
disputes involving domain names. Gurry and other supporters point to the
ICANN uniform dispute resolution policy as a successful example of how
alternative dispute solution can be used to resolve Internet disputes. 

Love and others complain, however, that the ICANN process is one-sided
in favor of business interests, a claim both ICANN and WIPO officials
deny. Graeme Dinwoodie, a law professor at the Chicago-Kent College of
Law, also notes that questions concerning applicable law and
jurisdiction emerge even within the context of the ICANN dispute
resolution process because the arbitration panelists must consider
national laws when making its decisions. 

WIPO has launched other initiatives aimed at addressing some of the
questions surrounding applicable law and jurisdiction raised by the
Internet. WIPO is working on guidelines, which it hopes to complete this
year, for how the same trademarks in different countries can coexist on
the Internet, said Denis Croze, who heads WIPO's trademark law section. 

James Love
Consumer Project on Technology
P.O. Box 19367, Washington, DC 20036
1.202.387.8030 fax