In response to the World Intellectual Property Organisation's WIPO2 RFC-2 Process
March 1, 2001

Introduction

The Republic of South Africa herewith submits its response to the Request for Comments 2 on issues addressed in the Second WIPO Internet Domain Name Process (WIPO2 RFC-2). This comment is also submitted in response to the inquiry from David Mills of WIPO in mid-January 2001, to the Republic of South Africa, regarding the litigation in the United States commenced against the sovereign Republic of South Africa by a United States for-profit corporation that is the registrant of the domain name southafrica.com. The Republic of South Africa requests that its comments be considered and included in WIPO’s Interim Report on the Second WIPO Internet Domain Name Process, as specifically proposed by WIPO in its mid-January inquiry.

The Republic of South Africa specifically responds to WIPO’s request for comments concerning Paragraph 23 of WIPO2 RFC-2, in respect of the issue of bad faith, abusive, misleading or unfair use of geographical terms.

South Africa's Position Statement

It is the position of the Republic of South Africa that the following geographical terms should be protected against bad faith, abusive, misleading or unfair registration and use: second level domain names, in all generic top level domains (gTLDs), that are the same as the official or common names of sovereign nations ("Country Names").

The Republic of South Africa proposes the following policy:

No second level domain name can be registered in a gTLD which is the same as the official or common name of a sovereign nation, except by the sovereign nation itself, or upon the authority of that nation, and any sovereign nation has the right to have any such existing registrations canceled and/or transferred to the sovereign.

Thus, for example, the Republic of South Africa would have the right to be protected against registration of the official name "RepublicofSouthAfrica" and the common name "SouthAfrica"; and the United Kingdom would have the right to be protected against registration of "UnitedKingdom" or "GreatBritain." It is important to recognise that the policy change proposed in this comment will affect only a tiny number of current registrants, as there are less than 200 sovereign nations.

The names of sovereign nations are deserving of special protection as domain names. For example, the Paris Convention for the Protection of Industrial Property has long afforded special protections limited to national symbols of sovereign nations, such as national flags, emblems, official signs and hallmarks. In today’s world of internet communication, a country’s own name is a symbol of the sovereign nation and should be its unique global identifier. Accordingly, this policy proposal by the Republic of South Africa would have no effect on the domain name registration of any geographical terms other than the very few Country Names.

The Republic of South Africa is aware that almost all official and common names of sovereign nations have been registered by private parties in the gTLDs, and not by the sovereigns, and frequently the registrants of these domain names have no association or tie with that country, and in fact a number of such registrants have registered numerous Country Names.

It is the position of the Republic of South Africa that second level domain names the same as Country Names are valuable national assets belonging to the respective sovereign nations. The country names in the gTLDs, particularly the dot-com TLD, have the potential to be of substantial political and economic value, particularly to developing nations. When the original registration authorities began permitting registration of second level domain names on a first come-first served basis, primarily to private western corporations and individuals, the registrants participating in this "gold rush" appropriated these valuable assets of the sovereign nations, to which the registrants had no preexisting rights. Furthermore, the registrars of gTLDs had no right to give away the names of sovereign nations in the second level domain names to private entities acting without permission or authority of the nations whose names were registered. Therefore, registrants of second level domain names the same as Country Names do not have and never had any property right in those domain names.

It is important to recognise that, largely due to the digital divide, this "gold rush" by entities in developed nations occurred at a time when many developing nations were unaware of the activities of these entities and how these activities would affect them.

The governments of developing nations need to harness the power of the internet to promote a positive image of their country and to provide information on national resources and history, as well as to focus global attention on national and local businesses and resources for purposes of trade, tourism and investment, in an increasingly competitive global environment. It cannot be disputed that the primary internet sites utilised by individuals seeking information about particular countries would be domain names which are the same as the Country Names themselves, particularly at the dot-com gTLD. In developing countries, many nationals need the assistance of their governments to reach out into the global internet economy, since individually they lack the resources to create significant web site portals on their own. In contrast, in developed nations, there generally is a far lesser need for the sovereign to establish one national internet site that supports domestic businesses and the domestic economy and attracts global attention to the nation.

If the current registrants, primarily western individuals and corporations, are permitted to continue to exploit these valuable national assets to which they have no rights, the effect will be to widen the digital divide to the further detriment of developing nations.

It is the position of the Republic of South Africa that the registration of a second level domain name the same as a Country Name constitutes a bad faith, abusive, misleading or unfair registration, because the registrants have no right to appropriate a valuable national asset that belongs to a sovereign nation. Moreover, the registrations by western entities of the domain names of Country Names of developing nations to which the registrants have no ties or affiliations are particularly abusive, misleading as to source, and unfair and deceptive as false designations of origin. In fact, the only reason that these registrants appropriated these domain names is to trade on the economic value of the Country Names of the sovereign nations, intending to attract for their own profit internet traffic seeking information about these nations. The Republic of South Africa is further aware of efforts by western registrants to sell these domain names back to the respective sovereigns at extremely high prices. In fact, the registrant of the domain name southafrica.com demanded from the Republic of South Africa an exorbitant price, stating that it would transfer the domain name to the Republic of South Africa only for a payment of between US$5 million and US$10 million. When the Republic of South Africa refused to pay that sum and indicated its intent to request WIPO to address this issue, the registrant immediately used the Republic of South Africa in a court in the United States.

Proposed new policy to protect Country Domain Names

The Republic of South Africa proposes that WIPO recommend to ICANN that it adopt the following policy and procedure, to amend the policy and the procedure for ICANN’s Uniform Domain Name Dispute Resolution Policy:

"I. ICANN should adopt the following policy, and instruct all authorised registrars to comply with this policy, and amend all Registrar Licenses and Agreements to include this policy:

No second level domain name can be registered in any gTLD which is the same as the official or common name of a sovereign nation, except by the sovereign nation itself, or upon the authority of that nation, and any sovereign nation has the right to have any existing such registrations canceled and/or transferred to the sovereign.

a. Any sovereign nation has the right to bring an arbitration before an ICANN-authorised dispute resolution service provider against any registrant in a gTLD of a domain name in which the second level domain name is the same as the official or common name of the sovereign nation.

b. Such arbitration shall be mandatory and binding, the recognition and enforceability of any such arbitral process or award shall be governed by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.

c. In such arbitration, if it is determined that the registrant=s second level domain name is the same as the official or common name of the sovereign nation, the domain name shall be ordered transferred to the sovereign nation. The arbitrator shall have the discretion to award to the registrant the following: (1) a monetary payment not to exceed US$10,000, if the arbitrator finds that the registrant acted in good faith in registering the domain name and with a bona fide intent to provide services at that domain name; and (2) request the sovereign nation to provide, for a period of up to one year, a link on the home page of its website at the domain name, which links to any new website of the original registrant, if the arbitrator finds that the linked website is used for an appropriate purpose, unless otherwise agreed by the parties."

Summary

Restricting the abusive registration of domain names in this category B second level domain names in gTLDs which are the same as the official or common names of sovereign nations B would have the beneficial effects of promoting information and electronic commerce concerning developing nations, would permit those developing nations to exploit these valuable national assets to the advantage of their citizens, and would help to narrow the serious problem of the digital divide between developed and developing nations. This change would affect only a small number of registrants, who acted without any reasonable expectation that they had any property rights to these domain names, and would provide relief to such registrants as the arbitrator deems appropriate.

Legal Challenge against Republic of South Africa

In response to the inquiry by WIPO in mid-January 2001 regarding the status of the litigation in the United States against the Republic of South Africa commenced by Virtual Countries, Inc., a private for-profit United States corporation which is the registrant of the domain name southafrica.com and domain names for numerous other countries, the Republic of South Africa notes that it has recently been served with a copy of the summons and complaint, and that the Republic’s initial appearance in the United States court is currently due to occur in New York City in late March 2001, and no trial date has been established. In further response to the inquiry from WIPO, the Republic of South Africa confirms that it has not commenced any arbitration concerning this domain name before WIPO or any other arbitral authority. It is the position of the Republic of South Africa that the lawsuit is a preemptive attempt by the private U.S. corporation to obtain a ruling from a United States court that would have the effect of circumventing the Second WIPO Internet Domain Name Process which is addressing this very issue. Virtual Countries, Inc., which has registered approximately fifteen domain names in which the second level domain name is the same as the names of sovereign nations, is one of the leading examples of entities that engage in this type of abusive, misleading and unfair registration of Country Names. It is the view of the Republic of South Africa that the United States court lacks jurisdiction to determine the rights of the Republic of South Africa, particularly since the Republic of South Africa is a sovereign nation entitled to sovereign immunity from such lawsuits, and in any event that the lawsuit initiated by Virtual Countries has no merit.

For further information, please contact
Ms Kitten Matthews
Ministry of Communications, South Africa
Phone: 27-12-427-8000
Fax: 27-12-427-8026
Email: kittenm@doc.pwv.gov.za
URL: http://docweb.pwv.gov.za/