Roberto and anyone else from DNSO who is listening:
You are correct that the opposition of TM interests has been a key factor
holding up the creation of new gTLDs. You are not correct, I believe, in then
jumping to the conclusion that TM interests must be given privileged membership
status in a DNSO.
Why not create 3 seats for a special category of members called "domain name
holders who have been abused by overly aggressive trademark owners"? What little
factual evidence we have suggests that this type of abuse from TM holders is at
least as extensive as abuse of TM holders by name speculators and infringers.
Do you understand the point I am making? It is not that TM holders shouldn't
participate, be listened to, or be protected. It is that membership classes must
not be structured to reflect particular policy positions.
TM-domain name interactions represent a struggle over the proper scope of
property rights. ICANN and its SOs are not the proper arenas in which to settle
this struggle. Their job is to administer the name space so that the Internet
can grow and collisions between name holders don't occur. That's all.
Governments define the scope of property rights through legislation, court
decisions, and international treaties. ICANN is not a government and neither is
the DNSO. If it tries to become one, it will detroy itself and corrupt the
internet.
The TM interests are amply represented by WIPO and by trade organizations and
lobbyists in every developed country. As commercial members of a DNSO, and as
general members of ICANN, they can and will make their presence felt. There is
no justification for creating a special membership class that makes their
interests more important than other interests.
I understand the risks and problems associated with telling TM interests this
fact. They have decided they have a right to guaranteed representation. They
want to turn the DNSO and ICANN into international regulatory agencies that
police trademarks in a more efficient, centralized way than the normal legal
channels. Someone must have the courage to tell them that this is not going to
happen. This will not make them happy. But if you grant their wishes you will
alienate large sectors of the registrar, registry, and user communities. I
guarantee it.
---MM
a few minor comments:
Roberto Gaetano wrote:
> The problem, as I see it, is the following.
> In the past, the major issue in the domain name system was the allocation of
> new gTLDs, and it is my own belief that one of the major opponents of this
> action was the trademark lobby.
> If this is true, it seems obvious to me thet ICANN will never endorse an
> application that will not include this constituency.
This is the fallacy that seems to permeate this discussion. Including a
constituency's perspectives need not mean a special membership class.
> This means that, sooner
> or later, the interests of the Registrar and Registries, User Groups, ISPs,
> and whatever else, have to come to a negotiation with the Trademark folks.
Yes, they do--in the process of policy formation, and more broadly in the
redefinition of law and legislation surrounding domain names and e-commerce. But
this can and will happen regardless of whether INTA has its privileged seats.
> My approach is that Trademarks and Commercial interests
> need not to be separate constituencies (if this means doubling the seats).
If I understand what you are saying, I agree--TM interests are one category of
commercial users, and the interest in TM protection is no more important or
pressing than an interest in security, privacy, legal responsibility, clear and
efficient rules, and all the other things that businesses are typically
concerned with.
> At the same time, I have to admit that giving to Registrars and Registries
> together 9 seats (as in our current draft) may seem difficult to swallow by
> INTA.
Then get rid of membership classes altogether, or make them very simple, such as
commercial, non-commercial, network operators.
> > This is a litmus test, and not only for me. You will remove your DNSO from
> > consideration by a significant number of people, and guarantee strenuous,
> > no-holds-barred opposition, unless this flaw is fixed.
> >
> What flaw?
The flaw of having special membership classes for a particular policy position.
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