ICANN Adopts Controversial Dispute Resolution Policy >BY Nick Patience.

At the first board meeting open to the public, the interim board of the Internet Corporation for Assigned Names and Numbers (ICANN) yesterday adopted a nascent uniform dispute resolution policy that aims to stop so-called cybersquatting and the registration of domain names in "bad faith." However, the policy has been criticized recently and critics feel it does not take into account the most recent case where an appeals court ruled that a domain name that matches a federal trademark does not necessarily dilute that mark and therefore does not have to be surrendered to the trademark holder.

The plan adopted by ICANN at its meeting in Santiago, Chile was formed from a report published in April by the World Intellectual Property Organization (WIPO) and altered slightly since then by ICANN's domain name supporting organization (DNSO), which is the body that forms domain name policy and then forwards it to the board for approval or otherwise. The policy was then looked at by some of the new registrars, including America Online Inc and Register.com, together with Network Solutions Inc that suggested it as a policy for voluntary adoption. The implication of it is that everybody who registers a name with any of these companies will have to submit to arbitration if they are challenged for registering the name in bad faith.

In a recent case Avery Dennison challenged a company's right to use avery.net and dennison.net because they diluted its trademark. Avery won a summary judgement in district court in April, but it was overturned by the Ninth Circuit US Court of Appeals. Mikki Barry of the Domain Name Rights Coalition (DNRC) says that as well as ignoring that case, the dispute resolution policy is "more restrictive than any country's law" because, among other things, it prohibits the exchange of any money for a name if the use of that name has been challenged by a trademark holder. However, as she points out, many cases are settled out of court with small payments, so this policy could force many people to go to court who might have been able to settle. The point of this policy is to avoid having to go to court.

However, it should be noted that ICANN has not completely finalized things yet and president Mike Roberts will convene a small advisory committee of his choosing to consider the implications of the policy from the point of view of registrars, non-commercial, individual, intellectual property and business interests for 45 days before the policy is enacted fully.

The other major issue at the meeting was the question of membership and the at-large directors that would be elected by that membership. Funding has been cited as the main reason why ICANN is still not even close to having a general membership.

ICANN chair Esther Dyson was of the opinion that the membership scheme that ICANN has been hatching and re-hashing for months but not executing upon should not cost that much money after all, saying it would be "easy to fund." Some of the other directors did not seem so sure, but she insisted that the question of funding shouldn't hold things up. She vowed to approach groups such as the Markle Foundation personally to seek their financial and organizational assistance in the matter. Markle, a New York- based non-profit group that specializes in communications policy advocacy, research and education, recently vowed to spend $100m over the next three to five years "to ensure that public needs are served by emerging communications media and information technologies."

The plan is for the nine at-large board members to be chosen by an at-large council, which itself would be directly elected by an ICANN membership that will number at least 5,000. The main reason for inserting the council between the board and the membership is to try to avoid the board succumbing to lawsuits, which may or may not work depending on which legal opinion you believe. The 18-member council must be geographically diverse, as must the at- large board members they elect. The elections will take place in two tranches to test the election procedure, which has yet to be finalized.

This won't be happening any time soon, however. The first tranche will be in place by summer 2000 and all nine at-large members will be seated on the board by the time the current interim board members leave their posts by the end of September 2000. There are many in the internet community that ICANN claims to represent that feel ICANN should not be making substantive policy decisions such as the adoption of the dispute resolution policy until at least some of the board members are elected, even if that is just the ones due to be chosen by the three supporting organizations by the time of the next public board meeting in Los Angeles in November.

Finally, ICANN recognized its seventh constituency with the DNSO, the non-commercial domain name holders constituency, but only on a temporary basis at this stage. Its status will be revisited in Los Angeles. There will be some additional meetings by phone between now and then.