> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED]]On Behalf Of Mikki
> Barry
> Sent: Friday, January 22, 1999 7:21 PM
> To: IFWP Discussion List
> Subject: [ifwp] Re: DNSO Important update: The "Merged" Draft
>
>
> >Many countries have no commercial law to speak of, and of those
> that do, IP
> >complaints are regularly flouted with a wink from the
> government. In China
> >and other places, it's an entire industry. These "forums" have
> not just not
> >worked fine, they haven't worked at all.
>
> These countries would not sign onto a WIPO treaty then, and could not
> enforce any policies over registries located in their countries anyway.
It is not up to governments to enforce policies; it is up to the registries.
These are different things. Repeat, these are different things. Any
registry is free to sign any commercial agreement it wants.
> And the problem of consumer confusion in a country with a country
> code from
> one of these countries would likely be recognized as something that isn't
> necessarily the "real thing" if their intellectual property laws are so
> lax.
Remember, the Internet is global. You can see any website under any domain
name for any TLD that is in the root. It's not a local problem.
> I still don't see the need for WIPO or ICANN to attempt to enforce
> something that probably can't be enforced.
>
> Further, I do not believe that one policy across ALL TLDs will serve the
> ccTLDs, the commercial TLDs and the non-commercial TLDs well at all. Each
> has different needs and policies.
I couldn't agree with you more here.
> >
> >For trademark owners whose names have been pirated, often for
> resale to the
> >owners, there is nothing to do but (a) try to get the registry to do
> >something, which is often unavailing, or (b) try to buy it back.
>
> Is this a serious problem in ccTLDs of countries without proper
> intellectual property laws?
Two points. (a) What's proper, and (b) yes.
> >
> >This *is* a problem. It's a common problem, I can attest to
> that from the
> >personal experience of having negotiated with registries and
> domain holders
> >in hundreds of cases. Just because Milton Mueller didn't bother
> to include
> >them in his "Syracuse University Study" doesn't mean they don't exist. I
> >built a million-dollar business based on corporations paying me
> good money
> >just to register names for them all over the world because it's
> cheaper to
> >do so than pay pirates or go through non-existent legal channels. They
> >would have been happy to work with their .com domain only except
> for piracy,
> >and most of them came to me only after they had been contacted
> for ransom.
> >The fact that it's a problem for a group you've compared to slaveowners
> >doesn't make it less so. In most places, there is no law to
> deal with it.
> >You can say, oh, too bad for those rich bastards, but they do have
> >legitimate interests. If you don't want trademark owners interfering in
> >every little DNS detail, you have to make provision for the big
> concern they
> >do have.
>
> Wasn't Milton's study US based?
It was based on .com. Is that US-based? I guess so. But it certainly
didn't take into account the many piracies in ccTLDs that affected US
corporations.
>
> Further, please tell me why trademark owners should be interfering in
> "every little DNS detail?"
I don't think they should be, I don't think so at all. I didn't suggest
they should. It has been your cry that they shouldn't and that they are by
wanting representation on the DNSO. I'm suggesting that by saying that
their concerns concerning domain names and trademarks are not the proper
concern of the DNSO (and by comparing them to slaveholders), you are
hardening their positions and creating an atmosphere of distrust that makes
them think that the only way to protect their interest is to get involved in
every little detail, lest you and yours conceive of some sneaky scheme to
disenfranchise them.
> You have iterated one problem in some
> countries. I would postulate that for every case you have, I
> have one from
> a domain name holder who is being reverse hijacked.
That's an assertion, one I don't happen to believe is supported by any
evidence. I believe Marty Schwimmer recently posted a list of names held by
just one registrant. If you think all those corporate names and brands were
registered and paid for (if indeed they were paid for) for the registrants
personal use (perhaps because he had sons and daughters with those names?),
then, frankly, you're smoking crack.
> So we should take the
> small problem of cyberpiracy and expand it into allowing some trademark
> owners (not all mind you because I am a trademark holder) to "interfere in
> every little DNS detail?" I certainly hope not.
It's not a small problem. It's a big one. Should it suprise you to find
out that most corporations don't publicize these things, because (a) they
don't want to be embarrassed, and (b) they don't want it to get out that
they are willing to pay? I have signed many NDAs to cover that very
subject.
>
> Trademark owners should not have special privilege on the Internet that
> they don't enjoy in any other medium. Nor should they have special
> privilege in determining the direction of a TECHNICAL body, the DNSO.
Look, it's a different medium, and there are different problems. If
Freedonia doesn't protect trademark owners in Freedonia, they don't really
care, because they don't have a market in Freedonia, and the Freedonians
don't have much in the way of exports, so it doesn't reach their main
markets. But on the Internet everything is visible everywhere. It's a new
problem, and it requires new solutions.
BTW, if the DNSO is a technical body, why should any old domain holder have
a say (I think that they should, but that's because I don't think the DNSO
is just a technical body; it's a political body as well -- as Jay Fenello
said at the Jan 21 meeting, "this is about Internet governance.")
> >
> >If you don't want trademarks to exist, maybe you should try the
> appropriate
> >legal forums to abolish them. Until then, trademarks do exist,
> their owners
> >have legitimate concerns. Telling them to go screw themselves
> is the best
> >way to make sure that corporate America does its damndest to get
> involved in
> >protecting their interests through the DNS.
>
> Oh please. I am a trademark lawyer. Why would I want trademarks not to
> exist. You are again comparing apples and oranges. Trademarks are NOT
> domain names, and domain names are NOT trademarks.
Well, I'm not a trademark lawyer, thank god. But it's more like tangerines
and tangelos. They are not the same, but they look alike to a lot of
people. There's no argument that they aren't the same thing -- agreed, they
aren't. But people confuse them, and that's the problem. Or do you think
that they don't confuse them, and that there is no problem?
> The USE of the domain
> name, under current law is dispositive.
You mean under U.S. law, one of over 200 sets of national laws.
>Not its existance. Nobody is
> telling them to "screw themselves." What I am saying is that there are
> already avenues for trademark holders who are legitimately being harmed to
> remedy the situation.
You mean that there are hugely expensive avenues in the United States. Why,
if there's a better way, wouldn't it be a good idea to implement it? I'm
not saying there is a better way (certainly not NSI's policy - ugh), but
wouldn't it be a good idea to investigate the possibility, instead of
dismissing it out of hand?
>The fact that there is only one .com will be
> alleviated when there are more gTLDs, especially if one is set
> aside solely
> for trademark holders in which a group like INTA or WIPO can make the
> rules.
I see. So when the "trademark" TLD, which as far as I know hasn't even got
a sponsor a la .per, is created, then all the trademark owners can get a TLD
there, and they won't care anymore when someone registers their name in all
the TLDs everyone actually uses? Please.
> If there are other TLDs for personal use or other non commercial
> speech, that would certainly alleviate their immediate concern, n'est ce
> pas?
Tu rigole. Do you have a way to keep personal or not-for-profit users from
using their "personal" TLDs for e-commerce? Do you have a way to prevent
personal users from registering in the "commercial" TLDs? Remember, there
used to be rules for .NET and .ORG, and the enforcement was a nightmare, and
it was dropped. So do you want to set up a policing staff for these new
TLDs, so that everyone has to wait while they are "investigated", just to
prevent trademark owners from using an extra-legal method of preventing
hijacking?
Antony
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