> In the consultation on WIPO RFC-3 in Mexico at least one clar legal
> opinion did distinguishbetweeen the holding of a domain name and its use.
> According to this lawyer the onlymoment when you sep into intellectual or
> industrial property infringement is when you use the domain name for
> commerce or profit.
I do understand that in Europe (and possibly elsewhere) there is a strong
feeling that one who simply holds a domain name is acting in a legally
adverse role with regard to someone who has a mark in that name which they
would like to exercise via the domain name. And thus, the mark holder can
compell the domain name holder to relinquish the domain name despite a
total lack of specific use.
(I may be misstating things, but that's what I've heard.)
I personally do not agree with that point of view and, if that rule were
to be imposed in the US, it would represent a significant increase in the
rights and privileges accorded to the holders of trade/service marks over
those who simply have domain names.
This disagreement is an example of why these issues are delicate, why they
need to be addressed through a the widest possible debates and mutual
adjustments.
This is why these issues must not be adopted without detailed thought or
adopted by a small group of non-elected members of the ICANN board, a
board which, under ICANN's organic documents has no power to adopt such a
regime.
Yes, as Dave Crocker points out, there is harm in delay. Those small fees
we pay in the interim do amount to millions of dollars of revenue to NSI.
But overall, I believe that the cost is worth it, that we need to do ICANN
right.
(I do believe that NSI ought to be required to act in some affirmative way
to diminish some of its preferential position vis a vis any new
registrars/registries that may try to arise. I'm not particularly willing
to bet that such a thing would occur, however.)
--karl--
