> > - Domain names may be used in any way, or not used at all, at the
> > pleasure of the domain name holder, except that a domain name may
> > not be actually used to infringe upon the rights of others in their
> > names or marks.
> >
> > - Such infringement occurs when the use of the domain name
> > materially interferes with the free exercise of the legitimate
> > rights granted to the other by statute or long established custom
> > equivalent to law.
> >
> > - If such infringement occurs, then the domain name holder may be
> > compelled to refrain from the infringing use, but may not be
> > compelled to transfer or release the domain name.
>
> Your phrasing suggests that one could distinguish between
> 'domain name' and 'the *use of a domain name,' especially in view
> of the argument that the Registry database is intellectual property.
I do distinguish between the mere name (including the fact that it is
registered and pointed to by some reference in some higher level part of
the domain name system) from the way in which the registrant of that name
makes use of that name.
> That is, the holder of a domain does not 'use' the domain name; it's
> only use is by the database to reference the domain's IP number.
I very much disagree. I am unwilling to to replace the fact of a
technical based protocol reference with the way in which the person who
has that domain name actually holds that name out as an identifier of
something.
> If there is trademark infringement -- for instance, by its pointing to
> a site which infringes on legitimate business -- then that is the
> *registry's liability, not the *regisrtant's. In this case, wouldnt
> the remedy be not to suspend the domain, but to remove the name from
> (that particular) registry?
The remedy is not to remove a name from a registry -- that is equivalent
to taking the name away from the registrant. That is a remedy which is
well out of proporation to a violation.
The answer is to simply look to the what a registrant does with a name,
how that name is used as a sign to say "here I am".
A domain name is a door behind which there are an infininite number of
possible things. What I chose to actually place behind that door and how
I tell people to come to my door is how my domain name is "used". There
mere fact of the door's existance does not constitute "use".
And if that use improperly steps on someone else's toes, then we can ask
the domain name holder to step aside (and possbily pay for some new
shoes), but we should not cut off the domain name holder's legs and hand
them over. Yet that is largely what is being proposed by WIPO and what
NSI's flawed policies do.
--karl--
