Kerry Miller wrote:
> The string *becomes* a presence, and it should be up to you to make it 'valuable' to
>associate that string with your activities. But isnt the TM argument just the
>opposite? -- that strings
that are *already* associated with certain activities (and in certain
locales and for certain periods of time) have precedence (i.e. value).
I think that is one of the TM arguments, especially with regard to
dilution. I think the case someone using a "Playboy" tag to confuse
search engines is a good example of one of the things the TM folks are
worried about. They know that wicked people are out to subvert their
advertising investments at every step, and that the Internet makes them
particularly vulnerable to these sorts of attacks.
But I also think the TM industry's behavior is a good example of
negotiation by asking for the moon. I think it's more practical to focus
on infringement rather than dilution, since it's more clearly cut and it
lets you sidestep potential conflict with free speech. I would consider
this approach a possible way of splitting differences, giving the TM
industry what it ultimately needs without giving it all it demands.
Then perhaps the issue can be resolved down to Internet-based,
inexpensive dispute resolution, as Kent seems to be urging, and speedy
enforcement. But enforcement is currently a non-starter since gTLDs and
ccTLDs policies aren't harmonized, and ICANN is far from establishing
the base of legitimacy and respect it needs to establish a strong policy
for all TLDs. And even if ICANN did have such legitimacy, there's still
the question of how to expedite enforcement when contact information is
so poor and unreliable.
So, responding to Gregbo's question elsewhere in this thread, I'm not a
big fan of building mechanisms to allow for pre-emptive challenges to
names. Names are simply handles on entities, and it's the behavior of
the entity where lines should be drawn. Recall that CORE was forced to
concede on a waiting period, but continued with the idea of implementing
a port into the zone server by which owners of famous marks could query
the system to check for string matches. From there they could pursue
their independent infringement investigations (And I'm sure someone will
correct me if I've got some of the details shuffled)
And now I get to a point where I think Greg is on the right track and
Kent jumps off. The DNS is all too often NOT being used for its original
purpose, which was to let people use names rather than IP numbers. The
name handle was always meant to be matched with some real resource ON
THE INTERNET. Instead it is being used to capture strings of characters
in order to build a trade in those characters... off the Internet. A
good chunk of the sybersquatting issue arises out of people's ability to
abuse a sloppy registration system.
I think ICANN should shoot for setting out and enforcing a clear policy
that names will not be serviced until they are paid for, and that
service for a name must be linked to a functioning IP address (not a
website, but a pingable address). The White Paper made clear
recommendations along these lines, as did Ellen Rony's straw poll of the
clueful.
Did the USG bother to push for this during the negotiations with NSI
last September and October? I don't think so.
Is this something that's contemplated as part of the move toward
competitive registrars in .COM over the next few months? I doubt it.
Will ICANN or any Root supervising body ever acquire enough strength to
get the TLDs to adopt such a common sense policy? Not until that body
builds up some well of confidence among the public to which it must be
held accountable.
Craig Simon
