At 09:54 PM 2/27/99 -0800, you wrote:
>
> At 01:54 PM 2/27/99 -0800, Bill Lovell wrote:
> >At 01:21 PM 2/27/99 -0800, you wrote:
> >>At 11:57 AM 2/27/99 -0800, Bill Lovell wrote:
> >>>At 03:00 AM 2/27/99 -0800, you wrote:
>
> Bill and all other EudorsPro users, under /Tools/Options/Miscellaneous, check
> the "Automatically Expand Nicknames" box and your reply should start to work
> correctly.
(Made the change -- don't know why this was pointed out, but what the hey? I'm
so
gullible I'll fall for anything. :-) )
>
> >>Okay, so the dent goes the *other* way. I always thought that, as the
> >>holder of a registered trademark, I "owned" that mark. In what way do I not
> >>own it?
> >>
> >Anything that can be "owned" is property. A trademark registration is more
>
> >The trademark imposes duties of performance that neither patents nor
> copyrights
> >impose, and are only acquired (this is all U. S. law, of course) by ACTUAL
> USE
> >of the mark in commerce; the trademark registration itself neither adds to
> nor
> >detracts from whatever trademark "rights" might already exist under the
> common
> >law, except in terms of evidence. Those duties also include that of
> >maintaining
> >the quality of the goods sold under the mark: the consumer has a right to
> get
> >what was expected when the purchase was made on the basis of the mark.
>
> Thank you Bill! As ownership isn't near as important as control, I can live
> with your answer quite well. In this specific instance example, I create
> .GOSHALMIGHTY, register the trademark, create a charter for it, and support
> it on my name servers, and start taking registrations, then not ICANN, nor
> anyone else, can legally do a damn thing with that TLD? Mayhap, ICANN, once
> they start creating new gTLDs, would have no choice but to honor that TLD and
> enter it into the roots? A real strong argument can be made for that case.
Um, don't leap too fast. As you may know, it took the USPTO quite a while to
pin down the
rules under which a trademark could be acquired on a domain name. People were
trying to
register the domain name under incorrect classes, i.e., they sought to register
under Class
38 for telecommunications (thinking that the domain name was an internet
thingee) when the
goods or services they provided were in entirely different fields. The skinny
on this whole bit
is at http://www.uspto.gov/web/offices/tac/domain/.
You either have to provide the service first or apply under an "Intent To Use"
and then start
providing the service. But your tacking an application for a trademark
registration would not
necessarily cut any ice with those who run the roots. What's to stop them from
saying
"you've got a trademark on nuthin', babe"?
>
> I would posit that we have just found the natural process by which new TLDs
> will have to be created. Further, as Marty, Bill, and I discussed earlier on
> this list, all SLDs and other domains, registered within this TLD, can be
> protected behind the TLD's charter.
Under what theory would that be? You mean as in ibm.goshalmighty? Don't think
so!
>
> It gets even more interesting in that, since the trademark-holder is held
> responsible for maintaining the quality of that mark, they can NOT be coerced
> into allowing other registrars to register domains in that TLD, on the simple
> argument of "quality control".
A little jab here (I hate myself when I do things like this!) Maybe the
"quality" of .goshalmighty
includes the fact that it provides 7/24 el perfecto WHOIS!!
>
> This shoots down a *whole bunch* of arguments made on these issues, over the
> past few years. Admittedly, some of them mine. It also blows huge chunks out
> of the ICANN domain name accreditation guide-lines.
Not at all. There's still "you've got a trademark on nuthin." If the scheme is
such that in the absence
of ICANN accreditation you simply can't get onto the net so as to provide the
service by virtue of which
you gain the "right" to claim the trademark, the trademark "right" is never
going to come into existence
so you could register it. Like I said, the registration process itself neither
adds to nor detracts from.
>
> With these conclusions, they are moot. If they are considering adding fees to
> DNS registrations they should reconsider, as that avenue of revenue now
> becomes unworkable. Since trademarks are NOT property, unless they also
> copyrighted component (The text of a charter *may* qualify as such a
> copyrightable work), any discussions wrt property-rights are irrelevant.
>
> Under these conditions I also submit the following:
> * No one has control of SLD's, in this type of TLD, other than the TLD
> registry. Not ICANN, not anyone else. The trademark holder has sole
> responsibility for policing the mark. In fact, they may lose their mark
> unless they perform "due diligence".
> * Mandatory Arbitration of SLD registrations can not be enforced on a
> chartered and marked TLD registry.
> * Denial of access to the root-servers, when other TLDs are being
> registered, is questionable at best. It may not survive judicial review.
> Note also what I am NOT saying, this process is not mandatory unless the
> root-server operator wants to make this process a requirement for operating a
> TLD. However, not following this process would potentially leave the TLD
> operator vulnerable for take-over or other loss of control.
These are all quite interesting observations, which might well survive closer
scrutiny by this jolly
bunch, but I will say you are generating lots of litigation, e.g., under denial
of access. By what
authority, given the basic American principle of equal protection under the
laws, would access be
denied? Failure to meet the criteria for accreditation? Where did the authority
to set those criteria
come from? Uncle? Can a "rational purpose" be shown for those criteria? If not,
no authority to
establish them could be shown.
I hate to use the next phrase, because it is almost invariably misconstrued. So
first, if I use the
word "police," think of the GIs out in the yard cleaning up cigarette butts,
and NOT the law
enforcement meaning. Okay? Governments have "police powers," which happen to
INCLUDE
the cops, but more broadly it includes such matters as operating AmTrack or
building bridges or
building roads, etc., etc. The rule is that governments must be able to show
that any activity
lies within its "police power," and there must be a "rational connection"
between the purposes
to be carried out and the actual actions proposed.
The point of all this is that governments, at least that of the U. S., operate
under fairly severe
restraints, as do also any arms of that government. If things have not been
going right, e.g.,
with NSI, ICANN or whoever, it is because those various entities might not have
been challenged
enough with respect to the legalities.
>
> Over-all, I like it, who needs ICANN?
Again, what I said was in the nature of Trademarks 101; I would be very
hesitant to leap to
too many conclusions in the specific context of domain names, ICANN, etc.,
since the
specific application of the kind of generic law I was describing is typically
not so simple.
I am expressing general principles, and to those stated earlier I have
described a bit of
the theory about governments' "police power," so that the FRAMEWORK within
which
these issues may be resolved will be better understood. The specific action
requires a
specific set of facts and a ton of legal research into those specifics to back
it up.
Bill Lovell
