Pisanty, > 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. Yes, it should be fundamental that there is no infringement in holding a name, only in commerce. It follows that the *only reason people are getting sued for names per se is that the (commercial!) act of registration has been without any liability whatsoever. It is for this reason that it seems worthwhile to distinguish what a registrar does with the *name from what the user does with the *site. ===== Jeff, > > 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. 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 part I agree that it this potential is the "Registries" responsibility. > But in part I would argue that it is also the registrants and the Registrars > responsibility as well in the instance of alleged infringement. Yes, for the moment, we have to say registrar. I was looking a little further ahead... > Existing > TM law and case law around this sort of instance is in extant as well. > But in most cases ALL of the responsibility regarding an alleged infringement > is on the registrant. Maybe this is proper, and maybe it is not in a real > sense. However, I do have to say that the Registrant should as a matter > of responsibility "Do his/her homework", so to speak before registering > a Domain Name. I would also argue however that the registrar should > do so also before allowing that DN to be "Officially" registered, or at least > do a preliminary scan on the requested DN against known TM names... Yes, what is at issue is the way to involve both parties: imo, once the *registrar is seen to have some responsibility, then it will be easy enough to establish different rates according to how much liability the registrant wants to hand off: the more homework s/he's done, the less reason there is to pay someone else to do it. And of course, it's here that different registrars can offer *competing service... > This is not foolproof protection but would go a long way in keeping some > assemblance of harmony. The real problem with my suggestion is that > it is the USE of that DN that is in question here, hence putting the > majority of the responsibility back to the Registrant. I can't see clearly > where the Registry has much if any legal responsibility and it is a > database function primarily. On the contrary, the *value of my suggested interpretation is that separating the 'use of the domain' from the 'use of the name' squarely divides the responsibilities and the liabilities. Suppose I register purusha.com as a cottage-engineering site, and I pick your service plan A, where you do the whois and TM research to see that that it is not going to get caught by undue similarity. (a) I pay the premium, and (b) I attest that my use of the domain, *regardless what its called*, will not subsequently infringe on *whatever it is* that porosha.com, perish-shah.org and Peru- Spa.net are doing. For your part, you have an interest in seeing that I meet my payments *and that my practice *remains non- infringing, so that when your use of the *name (i.e. as a pointer to my site instead of to porosity.com, say) is queried, you can say that *to your knowledge* there is no conflict. The weakness of extant rules (such as NSI's) is that they leave just that knowledge out of the picture. > > In this case, wouldnt the > > remedy be not to suspend the domain, but to remove the name > > from (that particular) registry? > > No, not necessarily, but is one solution that could be imposed. But it > should be the one of last resort. Removing a DN name from a registry > Database lends that name forever to be out of bounds, and that would > not be a wise thing to do if it is not necessary. > Ah, but you havent followed your thinking through: removing it from one registry does not prevent my registering the same name with a less scrupulous (or more litigation-ready, if theres a difference ;-))) *registry, when that day comes that there is competition on that level. Indeed, its my guess that it will be just this kind of 'conflict' which will not only drive that competition, but also make all parties more sensitive to just how far its worth claiming 'infringement' by names alone. (End users of command- line interfaces know very well that 'dir *.*' is different from 'del *.*'; is it impossible to imagine this acumen developing among domain- name holders as well?) kerry
