I had occasion to speak today with an apparently bright and interested woman who is a trademark attorney at a firm that represents ad agencies (!). She had no clue of the controversy surrounding domain names, ICANN, etc. Had no idea that trademark reach had expanded beyond class of products/services and causing confusion. Nowhere on her radar screen, even the periphery. If she doesn't know, what do you think of most laypeople? Scarey. J Judith Oppenheimer, +1 212 684-7210, 1 800 The Expert Publisher, http://www.icbtollfree.com/testimny.cfm Register for FREE 800/Dot Com Headlines here: http://www.icbtollfree.com/reg.cfm?NextURL=Index.cfm ICB PREMIUM SUMMER SALE - ONLY $99 BUCKS A full 12-month subscription, with full article and web site access - ONLY $99 BUCKS! http://www.icbtollfree.com/order.cfm -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] Sent: Saturday, July 15, 2000 1:40 PM To: [EMAIL PROTECTED] Subject: IFWP_LIST V1 #845 IFWP_LIST Saturday, July 15 2000 Volume 01 : Number 845 ---------------------------------------------------------------------- Date: Fri, 14 Jul 2000 11:02:40 -0400 (EDT) From: "!Dr. Joe Baptista" <[EMAIL PROTECTED]> Subject: [IFWP] The civil service and the DNS I've finished a review of my civil service emailings. Seems alot of civil servants have no idea what I'm talking about when it comes to ICANN and the alternative DNS. Of course this means I'll have to email them again. regards Joe Baptista http://www.dot.god/ dot.GOD Hostmaster +1 (805) 753-8697 ------------------------------ Date: Sat, 15 Jul 2000 08:49:02 -0400 From: Michael Sondow <[EMAIL PROTECTED]> Subject: Re: [IFWP] Re: Very Different Stories You wrote: > What we are really seeing is an attempt to > control words on a world-wide basis, just as > we are seeing attempts to own genetic code, > business processes, etc. Excellent analysis. ============================================================ Michael Sondow I.C.I.I.U. http://www.iciiu.org Tel. (718)846-7482 Fax: (603)754-8927 ============================================================ ------------------------------ Date: Sat, 15 Jul 2000 09:16:33 -0400 From: Michael Sondow <[EMAIL PROTECTED]> Subject: [IFWP] Re: [Nc-tlds] PETITION: Civil Society Forum Craig A. Johnson (CPSR) wrote (to CPTech): > > Jamie, > > Hans sent this last night (Japan time). Can you post to your list? > > Thanks. > > Craig > > -------------------------------- > > PETITION > CIVIL SOCIETY PARTICIPATION IN ICANN > > (To be presented to the ICANN Board in Yokohama on July 16.) > > The Civil Society Forum is a group of non-governmental organizations > (NGOs) promoting the participation of individuals and NGOs in the > governance of the Internet. > > The Civil Society Forum held a very successful session at the Yokohama > ICANN meeting, where over 70 participants from around the world approved > in principle the Civil Society Statement on ICANN Elections. That > statement identifies principles and issues for the promotion of democracy > in ICANN (see: > http://www.cpsr.org/internetdemocracy/yoko_statement.html ) > > We the undersigned > 1. support the mission of the Civil Society Forum. > 2. urge the staff and Board of ICANN to work with the Civil Society Forum > to facilitate broad participation in ICANN processes. > 3. urge ICANN to include Civil Society Forum sessions in its future > meeting programs. The ICIIU rejects categorically this attempt by CPSR to co-opt the movement for democracy and proportional representation in Internet governance. CPSR, aware of the illicit machinations of the NTIA and big business to create ICANN behind the back of the Internet community, did nothing to prevent it. Now, CPSR is attempting to take over leadership of the opposition to ICANN, and to turn this opposition into a qualified approval for ICANN. We reject these manipulations, and accuse CPSR of complicity in the US Government's project to give the Internet to big business. Michael Sondow ================================================================= INTERNATIONAL CONGRESS OF INDEPENDENT INTERNET USERS http://www.iciiu.org (ICIIU) [EMAIL PROTECTED] Tel(718)846-7482 Fax(603)754-8927 ================================================================= ------------------------------ Date: Sat, 15 Jul 2000 13:45:41 -0400 From: "Karl E. Peters" <[EMAIL PROTECTED]> Subject: [IFWP] Considered Response to the WIPO paper Dear people of the WIPO, (and other concerned parties) I appreciate the invitation to provide commentary and input into the process of establishing further regulation on the internet names and numbers arena, the scene of many a battle, past and future. The WIPO's position on most of these issues is quite well demonstrated in its actions and determinations on individual cases in recent months. It is clear that there is a serious choice of bridges to cross now. as we will either choose a bridge that leads to a head-on collision or one with fewer obstacles. I do not foresee any option that will conveniently avoid all potential obstructions. This said, there are very certainly ways far referred over others. That is what I want to address here below: UDRP You site that ICANN has adopted many of the proposals from the first report and this is true. You further state that the wide usage of the UDRP proves its need in the internet community, and this is not to be denied. The problem here comes in the decided advantage given to any protesting company over the current holder of a given domain name. The system allows the protesting party to chose the singular arbiter to be involved in deciding the case. It is being proven ow that smart protesters are watching the trends and beginning to chose those arbiters that most consistently find the protesting part to be justified, thus winning the use of the domain. We can not blame anyone for choosing a path of greatest likelihood for success, but where is there any justice for the domain holder who has no say at all in the arbitration, that, by its very nature, is supposed to be nonpartisan. I believe that a UDRP is vital, but it should be modeled after those where each affected party chose one arbiter and those two arbiters chose a third that they can agree on. In this way, each party has at least some representation of its case to the process where it does not under current rules. Should the WIPO ever be taken to task over some of its rulings, only a matter of time until this happens, you certainly would not want the protesting party to chose the sole arbiter in your case, would you? Of course not! There is NO justice there and therefore fails to meet the objective of a truly fair dispute resolution system. The Underlying Problem I believe the underlying problem in unique name and number registration is in the simple impossibility of everyone getting the name they want in the most desired TLD. As Will Rogers said many years ago about land, "they just aren't making any more of that stuff". While the supply of land or domain names are finite in any given location or TLD, there is new and fervent demand for it everyday. It is important to understand from the outset that under no circumstance will every person or company with legitimate claim to the domain to FirstBank.com or any of a million others like it will ever be satisfied. It just won't happen! Even if we set up a complex system of location based TLDs and Secondary LDs and so forth, there will still be a conflict somewhere that can not be resolved by subdividing cyberspace. (i.e. firstbank.us.ga.atl or firstbank.uk.lon to reduce pressure between name holders in Atlanta and London who have legitimate claim to firstbank.???) What I am saying here is that we must give up the idea that there is a perfect system that will solve these problems. Instead, we should educate people in how to make do with names that are available at a price they can afford when they are ready to enter the virtual real estate game. Just imagine if I were to sue my neighbor because he holds a piece of land that I think is perfectly and "uniquely" suited for my new home. I would be laughed out of any court for lack of foresight or ability to buy this land under normal conditions as anyone else with a perfect and uniquely suitable use for the land would have to do. What exactly is it that makes the internet addressing system different in real terms? The only one I can see is that it is young enough of a system that large corporations and governments who lacked foresight (or may be newly re-named) feel they can use their economic and political muscle to adapt the "real estate law" of the internet to favor their greater financial power over those who arrived first, be it for better or worse. This is exactly what I feel I am watching before my eyes as we communicate, the ever quickening demise of the rights of the individual and small business entity who had the foresight to help make the internet the popular venue that it is. (There were MANY little guys on the net before most of today's corporations found it worthwhile to be there at all; and now they want to claim the choice pieces for themselves simply because they can influence the law that governs the distribution of them. In my humble opinion, the WIPO has played perfectly into their hands and continues, through reports like this one will likely be, to turn the tide on the true backbone of the internet, the individual users, in favor of the more financially generous "strongmen" of the conflict, the big trademark holders and institutions who try to parlay size in one realm into position in another. If you allow this to succeed, you will have sold out the very people who made the internet work as it does today to begin with. Without the individuals who populated the net in the early days, little or no value would have been ascribed to this real estate at all. Now the larger interests recently entering the stage are trying to wrest it away and make it a semi-private playground complete with consumers. INNs By the very nature of an INN, they create no conflict because they take it upon themselves to chose names that do not conflict with anything. Perhaps we should simply allow such names to be held in trust in each registry from the time the name is decided upon and proven harmless to protect the product from scalping. The UN could then place information about the product on these sites for the benefit of doctors everywhere or simply squat on them in the comfort of knowing that at least no one could use the addresses to defame the product or obscure its meaning or recognition factor. Personal Names Pressure on these names can be reduced by a system of hierarchy such as domains based on country, state or province, county or prefecture, city or town codes. There will always be two Bill Smiths in most US small towns, however, so we can reduce pressure, but we can never remove it completely. It will come down to who owns the latest lease on the property and what it takes for them to give it up. It is entirely possible, in fact unavoidable, that there will be multiple justified users of virtually any domain name conceivable. We can expand the real estate further in virtual worlds than in real ones by use of multiple level domains, but there will eventually come a point where Will Rogers will have been proven right in cyberspace, too; "They're just not making anymore of that stuff!" When that happens, whether it has now, or will in the future after there are tens of thousands of domain groups, we will come back to the same questions and have only the same answer, where were you when it was last available and why didn't you get it them? _____________________________________________________ (i) Should personal names be protected against bad faith, abusive, misleading or unfair registration and use in the DNS? Bad faith and abusive are rather subjective tests of a name holding and intent must be proven. If it is owned for the purpose of speculation, even though it is a sad departure from the founder's concepts for the internet, this is neither "bad faith" or "abusive", but merely either a shrewd or foolishly costly business move, depending on how easily the potentially offended party can adapt with another virtual address. If these terms mean the use of these domains to criticize the entity in question, in so far as it is not slander, this is free speech and should be protected, if not admired. and perhaps might be required to contain a link to the obvious entity to present their own side to the surprised web-surfer or potential consumer. This would help to do away with some of the misleading effects of holding and using a "brand" name for negative purposes. All these I understood, but what is "unfair"? Is this the generic term used by people who lost out on a domain name they thought they should have had for those who currently enjoy it? Without significant meaning, it defies meaningful comment or suggestion for change. _______________________________________________________ (ii) Which personal names, if any, should be protected: - - all names, - - names of famous persons, - - names of government officials or other persons in the public eye. If any name is "protected", than all should be! Is my name more important to me than yours is to you? Probably not. Why should any individual name be protected (reserved?) for another holder of that name? Someone recently bought a house that my wife and I really thought was perfect for us. Will WIPO help with our arbitration to get this house awarded to us? It really would be perfect for us and we can not afford to pay what the new owners think it is worth! Who will come to my rescue among the property rights advocates? If not, why should you support any one person over another for the right to their name as a domain name? ______________________________________________________ (iii) How do you define bad faith, abusive, misleading or unfair registration and use in respect of personal names? This should be answered by the WIPO as someone who helped coin such concepts for their clients. The rest of us can then better define our defenses. _______________________________________________________ (iv) How do you deal with multiple incidences of the same name? Real estate and the market place have an easy answer for this. Once something is out on the market, like a name that has been registered and thus given a "life", it goes to whoever approaches the seller with what the seller recognizes as a worthwhile price to sell it for. If five people want the same unique product, the shrewd owner will raise the estimation of his property's value as long as more than one bidder is available. Of course, there will always be some who simply want to keep what is theirs and who is to say they should have to sell or relinquish it just because there is other interest in it. If you think they should have to, please tell me who will represent us to get the house we so love from the new owners who think they love it more than we do and got it first. _______________________________________________________ (v) What provision, if any, should be made for dispute resolution with respect to disputes on personal names registered as domain names? At least, make a fair format for the UDRP such that both sides have equal representation in the arbitration rather than assuming that the more famous of the two sides who is complaining should win. Next week may bring a new and even more notable person by the same name into the public eye. We simply can not make decisions on the basis of recognition. As for people who register domains of other people's names, again, just have a fair system of arbitration so that any special circumstances, many we can not begin to anticipate, will be given reasonable hearing before a decision is handed down. _______________________________________________________ (vi) Would directory, listing or other similar services aimed at avoiding domain name conflicts concerning personal names be useful, and, if so, please describe such services? Assuming this means a sort ow internet "telephone book" so that people and their pages can be found despite the un-related domain name utilized, I think this basically already exists in search engines. If there is some organization willing to make a central and supposedly superior such search engine, it might help as a recourse for those who lose their battles, but it is unlikely, until very popular, to relieve the battle for the chosen domain name spots. __________________________________________________ Names and acronyms of international intergovernmental organizations, Geographical indications, geographical terms, or indication of source, and Trade names. Each of these might well be given an exclusive piece of real estate to sub-divide and have a built in system for disputes before they open and thus at least have fairness, if not make everyone happy. It would require a pecking order to be laid out up front and religiously adhered to. It could then help. Short of this, there is no clear solution available. The question should be, who will make the rules and when? A few examples of widening the space a little to relieve the pressure on the walls. It would also serve to make such groups easier to find rather than trying to figure out if they are using .com, .net, or .org among the current choices. .NGO - Non-Governmental Organizations .GOV - Already exists in one sense, but has room for great international expansion; or add another for outside the US if needed. .GEO - For world geographical sites of note, not to be confused with governmental jurisdiction sites! These are for tourism and promotion. .TM - For trademark holders unable to find the "right" .com, might well be sub-divided into geographic or political jurisdictions. Perhaps here would be a fitting place to deal with the concept of "addresses" versus "trade names" in the battle for domain names. Until some definitive law (such as the ABA seems to be pushing for internationally) comes to the forefront and gains wide acceptance, domain names are addresses only and should not be impossibly protected by trade mark and other such separate legislation. Many examples are already apparent in many discussion groups of multiple companies in multiple jurisdictions having equally reasonable reasons to claim a particular domain name that most closely reflects their business or product name. IN NO CASE can all of these legitimate claims ever be met to everyone's satisfaction so long as we think of domain names as trademarked or copyrighted property. If we consider them as they were intended, as addresses, it becomes easier to justify. There is a company called "onemainstreet.com" I believe. This is their virtual address and they have adopted the address as their company name. This does not preclude me from living at one Main Street, Anytown; but it would make it impossible for me to register my real address as my virtual address. It is simply not available. I would have a just reason for demanding this address because I can prove that I live there or have a business there or even have named my business this because it has this same actual address and it seemed like a good name for my company. Let us say that there are two such businesses in the same region and each one, in its own town, wants to incorporate in the same region with that name. I believe most governments would not allow this because the first one is first and the others are too late. Why can we not use such logic in the virtual world. Some people simply get beat to the punch. Does this mean they can not open their business? NO! Just that they must chose another name to be officially known by in that region. (or TLD) Here in the US, a major food retailer was growing quickly under the name "Food Town" in North Carolina. They owned that name in North Carolina, but not in every state. In order to grow into other states, they had to either change their name for the new states only or for the whole company to keep continuity. They changed their name to "Food Lion" which was available in all the planned states and built name recognition for the new name rather than complain openly about and try to sue the people under the name "Food Town" in the other states. I'm sure they would like to have kept the old name, but reality did not allow it and they are now again known for the quality of service and product rather than for any particular name. The internet can and should be no different. If you can't get the name or address you most want, you get another and do the best you can to make it known for the content it includes or represents. Certainly it may not be as easy, but it reflects reality, which, like it or not, does have its place in the virtual world. _______________________________________________ In closing, The WIPO and ICANN seem to believe that there should be a means for the people who mean the most to them, whether it be sponsors, members or contributors, to get the sites they most want on the internet. There is nothing wrong with this as long as it can be kept in context with all the others that believe they should get the best sites on the internet, too. The problem comes in the WIPO and ICANN friends being willing to use their real weight to gain what they want in the virtual world. I appeal to ICANN and the WIPO to let these friends compete in the real world on the internet, too. We all have a list of sites that we would own if we could. We all own a list of sites that we have made the best with in the absence of the most desired sites. Through the clever use of search engines and proper site promotion in the real world, we have all been able to work within the system of the virtual world just like we have made do with the house that WAS available and the corporate name that WAS available in the real world. Why set up a whole pecking order to replace what has always been normal order of business in a first come, first served world. If we can not satisfy more people under this new proposed system, why change the old one. Let us strive to find ways to satisfy more people first. When we can do this, the change will be justified. Very sincerely, Karl E. Peters [EMAIL PROTECTED] ------------------------------ End of IFWP_LIST V1 #845 ************************
