On Thu, May 13, 1999 at 02:37:29PM -0800, Ellen Rony wrote:
> Kent Crispin wrote:
>
> >I think it should be adopted, immediately, on a provisional basis. I
> >think that the new registrars need a uniform framework for dispute
> >resolution fairly early on (like: now).
>
> They have a uniform framework. It's called the court system.
There is no "the" court system. There are *many* court systems. They
can not by any stretch of the imagination be considered a "uniform
framework".
> >Modifiability, therefore, is a requirement.
>
> You are broadly optimistic in assuming that once a recommendation is
> accepted it won't become the defacto way of doing things. Modification
> will become an increasingly distant objective because it's easier to keep
> things the way they are than to impose change.
5 years ago the web was just starting to get popular, and look at it
now. The Internet, and ICANN, *will* be changing. There is
absolutely no way they can avoid it.
> >It vastly simplifies the registrars
> >lives during startup of competition.
>
> It is my understanding that registrars will be able to have their own
> individual registration policies, e.g. whether the verboten seven words can
> be registered or not. It doesn't appear that uniform policies on that end
> of the equation are either urgent or even desirable in a competitive
> market. Such differentiation may help customers choose one registrar over
> another.
Sure they can have their own individual registration policies. But
they will also have to follow some standards. That is the way it is
in all businesses. There is *plenty* of room for variation in
registrar policies, and there is nothing to prevent them from
embellishing the DRP in many ways. But if there is anything that
the Internet has taught us, it is the value of a base level that is
standard.
> >I think a uniform base DRP is a great idea -- more precisely, I think
> >it is an absolutely necessary precondition for private
> >self-regulation of the net. Without it, complete control over all
> >this *will* go to some international treaty organization. The WIPO
> >recommendations aren't perfect, but they form a pretty good starting
> >point, and they will evolve over time.
>
> So I guess you think registrars should be in the business of policing
> famous trademark owners marks?
Nope.
> That is what will be required if the famous
> marks exclusion becomes part of your so desirable unform base DRP.
Not at all. It is absolutely and completely trivial to implement
this at the registry level -- for example, the registry simply
registers the names to an escrow entity.
Furthermore, if the famous mark exclusion doesn't work out, it will
be dropped. It isn't necessary that the policy be perfect to start
with -- it just matters that there be a policy, and that it be
modifiable with changing conditions.
> Even
> forgetting that there is no worldwide agreement on what is a famous mark,
> why should registrars have to build into their system alpha strings that
> get automatically excluded under this provision?
>From a technical point of view this is in the noise. Much much
simpler than the general case of dispute resolution.
> Who gets to decide what
> those strings are? Will there be limits to the numbers that qualify under
> the famous marks provision? How will the bar between famous/well-known and
> infamous/lesser be determined?
Obviously, objective standards will be developed. This is a case
where, within fairly broad limits, the existence of a standard is
more important than its precise description.
> And, one overlooked loophole, when a company starts out new but quickly
> rises to the top of worldwide visibility and importance, at what point does
> it apply for the exclusion and what happens to those domain name holders
> who already have registered such names?
It applies when the objective standards are met. The issue of dn
holders who may already have the name is a minor one that can be
worked out. It seems fair to me that they would simply be
grandfathered, and be subject to the same dispute resolution
processes that any other holder would enjoy. In otherwords, if
their registration predates the designation of "famous", then the
holder of the famous mark would be limited to the normal course of
DR.
> I don't think you, WIPO or anyone
> who supports that recommendation has thought through this process because
> the worldwide exclusion doesn't map to rights provided in traditional
> commerce.
In fact the MoU ACP guidelines dealt with this problem fairly
well -- it's been thought about a great deal.
But a more fundamental rebuttal is: Of course every possible
ramification hasn't been considered. So what? The policy is a work
in progress -- WIPO acknowledges that, ICANN knows it, we all know
it. It's a reasonable starting point, and it will be evaluated as we
go along. That will be one of the major tasks of the DNSO.
> >I also am very much in favor of new gTLDs, and it should be clear to
> >anyone who has been around for very long that a uniform dispute
> >resolution procedure has got to be there before we will get any new
> >gTLDs.
>
> It should be clear to anyone who has been around as long as you have that
> the only order of business right now is to create the structure so that the
> Internet community can have an ELECTED BOARD at the helm, not these nine
> members who were thrust upon us, who are unaccountable, lack expertise in
> these issues, and make their decisions behind closed doors. Any other
> decisions only enflame the controversy and divert us from this elemental
> primary task. IMHO.
ICANN is a work in progress, also. It is a long way from a stable
form, and in the meantime there are things that really, truly, need
to be done. That is simply a fact of life dictated by political
realities. It's very idealistic to say that they should get
their representational structure completely defined before they take
any action, but it is out of touch with the realities of the situation.
IMHO.
--
Kent Crispin "Do good, and you'll be
[EMAIL PROTECTED] lonesome." -- Mark Twain
