CONCLUSIONS OF THE I INDEPENDENT LATIN AMERICAN CONGRESS ON DOMAIN NAMES

I. INTRODUCTION

1. In 2000 December and January of 2001 it was celebrated in Lima, Peru, the First Independent Latin American Congress of Domain names. There specialists in the subject originating of Spain, Peru, Ecuador, Argentina, Mexico, Chile and Venezuela gathered with the purpose of interchanging ideas and experiences on this novel subject.

2. In one first stage, work tables were satisfied to discuss on three main points, that is to say: I. Legal nature of the Domain names; II. ICANN; III. System of resolution of conflicts: OMPI.

3. During this stage, the interchange of opinions, information and experiences was of incalculable value since for the first time, the participants could confront their ideas with understood in the subject, doing of these sessions days very beneficial for all those that participated there.

4. Analyzed the results of the work tables, the communications appeared in the Catholic University of Lima throughout three days where the public almost filled the gauging of the room.

5. Studied the results of the First Independent Latin American Congress of Domain names, we present the following conclusions:

II. GENERAL CONSIDERATION

6. The principles and values that have constructed the Internet until the present time they find in deep crisis. The cooperation, solidarity, desires and necessities to share the information and, really, that " new space of expression human (... /...) enthusiastic by the freedom " of which spoke the Council of State French is crumbling before our eyes.

7. The commercial aspect is seizing of the Network with its consequent ones implications for all the actors of the same one. The use of the network in form commercial it is not a problem in itself, the problem arises when the commercial interests are put in front to other as legitimate interests as those and this is that it has happened in the matter of domain names.

8. The absence of being able and specific weight that at the moment have the States in matter of the administration of domain names threatens drawing new feudalism imposed by the market in the dawn of the society of information, defined fundamentally by the great multinationals and by The United States of America, in the frame of a dialectic belligerent between States that the appearance of a true and legitimate institutional system prevents world-wide of identification of initiatives in Internet.

9. A social and political reaction is more essential from the disadvantage sectors by the new distribution of the power, the small and medium companies, associations and non lucrative sector, as well as the citizens and consumers, who public in the global society allow a suitable reflection of the interests.

10. The States have to reflect on their paper in the era of the society of information, leaving to be, like until now, involuntary accomplices of impositions of the North American government and his multinationals, in order to make an effort in the adaptation to the new situation and in the defense of the true ones interests that they have entrusted.

11. The administration of the chaos that supposes Internet can not correspond, like until now, to the economic capacity of the agents who take part in this means, but to the objectivity of the reason.

III. CONCLUSIONS

A. ABOUT THE NATURE OF THE DOMAIN NAMES

12. The system of domain names was born like a technical system of identification of active users of Internet. At the present time, it has gone beyond those functions original constituting the main element identifier of the initiatives human that arises in Internet.

13. The own scope of the domain name is Internet, a new space for development of the human being and does not present an exact correspondence with any of the distinguishing categories of legal importance previous to the Network like marks or other distinguishing signs, names of physical or commercial people, author rights, etc. In the regulation and determination of the legal regime of this figure the distinguishing categories have to be respected as much previous to Internet like the principles and values that made the appearance and development possible of space to which it is referred.

14. The elements of identification of legal importance that has used and uses the human being in their activities is put under a great dynamism or mutability that affects so much to the legal institution to consider (marks, names of physical people, etc.), like the semantic load and a own identifiable characters of concrete sign. The variation of the regime to which it is put under each institution legal throughout History, as well as the mutability of the semantic capacity and distinguishing of each concrete sign, takes to raise the existence of a legal category still not studied as a whole.

15. This legal category would be formed by the totality of the phenomena in distinguishing matter of legal importance, that forces the formulation of one general theory that it gives suitable answer to the questions that raises plurality and mutability of distinguishing phenomena, or even the exposition of own distinctive like object of the Right.

16. The right to the domain name does not give its holder straight but that the one to use it in the scope of Internet. In any case, the use of the domain name is susceptible to confer to its holder a right of own substantiveness, that falls within sphere of protection to the identity and the signs that represent it.

B. ON THE ICANN

17. At the present time ICANN it enjoys the monopoly which before it enjoyed Network Solutions in the matter of domain names. This privilege, in case outside little, it was extended when it was transferred to him.

18. The ICANN is a deprived organization, created to instances of the Department of American Commerce to that is put under in its decisions important, the ICANN is subject to the jurisdiction of California and the United States of North America. Consequently, it does not present a statute truely international, nor it reflects the plurality of interests suitably, mainly governmental function, that concurs in the matter.

19. In their own words, ICANN is a body of technical coordination, nevertheless, the functions that at the moment carry out are not of the nature strictly technique that herself and of the Department of North American Commerce tries to make see. Questions like the approval of the uniform domain name dispute resolution policy (UDRP), the creation of new main levels of domain names and of first local levels, as well as the accreditation of the recorders and lenders of resolution of conflicts, they constitute nontechnical matters, that to show the incidence of this organization in questions of legal and political order.

20. ICANN has come working more like a commercial organization that technical, which it was demonstrated in the recent process of creation and new selection of TLD´s of such form that at the present time is being reviewed by the Congress of The United States.

21. The ICANN gives the impression to be destined, fundamentally, to defend interests of the great North American multinationals and the groups of pressure that they have acceded to his devices of direction, in any case with the supervision of the American authorities.

C. ON THE SYSTEM OF RESOLUTION OF CONFLICTS: THE OMPI.

22. The necessity to have a system of agile resolution of conflicts and economic, destined to solve the numerous cases of " piracy " or flagrant illicit advantage of other people distinguishing signs comprising of domain names, are a unanimous opinion and in these terms, we defend its existence.

23. In any case, it has to emphasize itself that the scope of application of the system of resolution of conflicts has to fit itself to the cases of " piracy " or as it establishes it the same uniform norms for the resolution of conflicts (UDRP), to registries abusive of distinguishing signs comprising of domain names, and not to supposed in that is to explain itself straight the best one, than it is what in good measurement has come happening.

24. The present jurisprudencial doctrine of the OMPI, like the greater lender services of resolution of conflicts, presents a line that does not agree with the spirit of the norms and perverts the system of domain names when trying one inadequate extension of the scope of effectiveness recognized to the trade names, despising the identificativas peculiarities of Internet as well as others identifiable categories of legal importance that the human being uses in the present time.

25. The application of the UDRP does not respect universal legal traditions, such as the institution of the bad faith that, often, is lent to an unjust interpretation that one does not correspond with the idea that, generally, is had of her in jurisdictions of the different countries. The system of resolution of conflicts, to effects of numerous national jurisdictions, are not an arbitration. It is tried it reaches of the policy of resolution of conflicts superior to the formed one by cases of " piracy " for which originally it was conceived. This extension of its scope of application completely lacks legal foundation or legitimation.

26. At the present time, with the system of resolution of conflicts one has operated species of investment of the load to drive, so that the holder of a domain that it is not it of marks, must go to the ordinary jurisdiction to be able to conserve its domain name, with the difficulties, economic and legal, that present to defend itself of the decisions of the panels.

27. Actually, as much the supplier of the service of resolution of conflicts like referee who dissolves the controversy is chosen by the part plaintiff who, obvious, he will choose referees near his positions and interest. For that reason, they must to settle down mechanisms that prevent the selection to convenience of the people that there are to solve the conflicts. A possibility would be to allow a resource in front of the first decision through as the person who interposes the resource can to choose the supplier of services of resolution of conflicts, or even that is to title of the domain name that the lender of resolution decides in his request of conflicts to which it is put under.

28. The present " jurisprudence " on the matter shows, in some of his occasions, that the selected panelists use the norms of resolution of conflict as a mere excuse, weakening as much the aims of the own one organization like all the system of resolution of conflicts, with decisions that they would be unthinkable in the frame of an ordinary jurisdiction with base in institutions relative to the intellectual and industrial property.

29. In any case, don't taking consideration the spirit, the letter and purpose of the resolution norms conflicts (UDRP), often the panelists exceed the defined material scope in the norms, to enter to know supposed in which are to explain itself existence or not of the best one straight. Such circumstance determines the illegitimacy of these decisions. Perhaps it is necessary, besides to lead back this pernicious one tendency, to consider the necessity to initiate a process of transformation of uniform domain name dispute resolution policy (UDRP) to the object to need with the greater one clarity as is he material scope of decision of the referees, as well as the creation of mechanisms that allow an overhaul of the adjustment of the decisions to same.

30. It, in addition, has to be done in any case admitting on the part of the ICANN his political character and, therefore, the legal importance of its decisions and of the content of the approved norms.

February of 2001.