Bill and all,
Bill Lovell wrote:
> 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 are right based on our legal evaluation of the new USPTO guidelines
regarding of classes for Domain Names. Class 38 is not the proper class
for domain names, rather it should be under class 42 I believe. BUt
what Roeland is referring to is a potential "TLD" such as Roelands
".GOSHALMIGHTY" (Read as "Dot GOSHALMIGHTY") as a private
TLD. However I believe this might qualify under class 38.
>
>
> 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!
I agree with this answer completely. We have been looking into this rather
closely for several months now. I wasn't going to say anything but old
Roeland spilled the beans on this approach so I guess that cat is out
of the bag now anyway. As IBM is a protected Trademark, not any or
all DN's even under a Private TLD or trademarked TLD would be
the legal property of the potential Trademarked TLD. IBM.GOSHALMIGHTY
would be such an example of this. However part of Roelands argument
is likely to .GOSHALMIGHTY is trademarkable and if used in public
roots would and Roeland had trademarked it, than that name space
itself would be Roelands. It would also be Roelands or MHSC's to
protect as well.... For instance Goldman Saks is considering this approach
as I have that on good authority... (No names at this point).
>
>
> >
> > 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.
This is an important point to be sure and well stated. However it would
not be difficult to meet the criterion to be able to provide for that access
to the internet from any .GOSHALMIGHTY DN.... At that point the
criterion would than be met and than does "Add To".
>
>
> >
> > 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.
Accreditation may not play a role here. Accreditation is based on the
requirements of the White Paper from DOC/NTIA. Those Accreditation
Guidelines are not explicit enough to address the .GOSHALMIGHTY
scenario. Hence would likely not play a role here in that respect. In addition
the Accreditation Guidelines must be developed with a "Consensus" of the
Stakeholders, which we all know they were not as is now well publicized,
would be another argument against the Accreditation Guidelines playing
a role in what Roeland is asserting. Do you agree here Bill?
>
>
> 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.
No doubt as you and I have discussed Bill, that at least ICANN has not been
adequately legally challenged. That fact is likely short lived however, if
you catch my drift here? >;)
>
>
> >
> > 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.
Very true, and at least we are engaged heavily in this legal research for
our own purposes.
>
>
> Bill Lovell
Regards,
--
Jeffrey A. Williams
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail [EMAIL PROTECTED]
Contact Number: 972-447-1894
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208
