WIPO RFC3 - and -[Fwd: ICANN & WIPO / RF3 please don't stranglehold the Internet]
Jane & Helmut Hirsch (h-domain@ix.netcom.com)
Sun, 14 Mar 1999 21:36:27 -0800
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Regarding: WIPO RFC3 - WIPO2 - Management of Internet Names & Adresses
Interim Report of the WIPO Internet Domain Name Process (Dec.23,1998),
1. (RFC# - par.2.(iv) You probably just "comment," whereas I more or
less interprete this paragraph as a "lament" about the absence of
"...central point of authority and control. Compared to other social
"institutions" ..." You mention - or almost laud - the " ... technical
development has been guided by protocols ... (IETF) and its
subcommittees and the ...(IANA)." But then come the heavy blow - and I
quote here the full sentence: "There has not been, however, the central
rule-making entitiy that has exercised COMPREHENSIVE LEGISLATIVE
AUTHORITY over the internet." (the Caps are mine.)
Comment: It is or was the Beauty of the ABSENCE of "central rule-making
..." - and the absence of - "... COMPREHENSIVE LEGISLATIVE AUTHORITY
over the internet," which allowed the internet to become what is
apparently sometimes "incomprehensible" to authoritorians or dogmatists
who live in a world strictly governed in every aspect of life by
Comprehensive Legislative Authority - a conglamoration of the "absolute"
and final "authority" of the state or government over every living
persons actions as well as thoughts and the expression of such thoughts
(a mixture of Lenin's or Stalin's attempt to control all their people,
China tries it still today, and a more modern version even of being a
nation or world of "laws" - trying to regulate everything under the sun,
creating the absence and in its worst case the total absence of "freedom
of thought" and "freedom of expression.")
2. RFC3 - para. 11 + 12. It is admirable that the countries of the world
have come together and through various treaties organize & recognize
each other's rights to acceptable intellectual property protection
including trademark protection. Here is mentioned that "trademarks
enable consumers to identify the source of a product, to link the
product with its manufacturer in widely distributed markets." The next
paragraph then talks about the "multilateral treaties" administered by
WIPO and the increasingly "intellectual capital" of the world as a
"source of wealth" opposed to the physical which is more bound by the
geograpical as well as national boundaries of presumably pre-internet
time.
Comment: TradeMarks (including ServiceMarks, TradeNames,etc.) are
commonly still alloted within national boundaries or increasingly also
within economic associations, like the European Union) but not yet as
"UNIVERSAL" in territory or class (35 international classes for trade
marks and 5 additional classes for service marks), yet throughout this
RFC3 an attempt seems to be made to expand some TradeMarks beyond their
rights limited by class or geographical protection in the physical world
- to UNIVERSAL rights or protection to their exclusive use of certain
Domain Names.
3. RFC3 - Paragr. 31. through 36. Here is asserted, especially in
Paragr. 32 that the "goal" of this WIPO process is "not" to create NEW
rights of "intellectual property" nor to accord greater protection ...
in cyberspace than that which exists elsewhere.
Comment: Yet,throughout the whole WIPO process TradeMarks(ServiceMarks
and TradeNames, etc.) are allotted superior and more universal rights
when it comes to Domain Names than any TradeMark holder can ever claim
in a national/geographic or class(es) system in the physical world.
McDonalds now becomes the one and only Domain Name holder for that space
- in .COM - giving it the universal priority in all 35 TM classes
(products), plus 5 SM classes (services) and Universally over literally
all countries of the world. So, my "cousin" McDonald who built up a
sizable business by making woollen sweaters which he ships around the
world cannot get the domain name McDonald because even now already the
"Hamburger-McDonald"'s TradeMark attorneys will swoop down on anyone in
the world who dares to use the name McDonald (even if it's a family
name) mostly in the food business, wait until this WIPO proposal goes
through McDonald will or probably can then block anyone in the world in
any class of product.
4. RFC3 - paragr. 38. Here is alluded to the conflict between social and
business communication, and while the DNS has demonstrated its
"outstanding" success in achieving its "design objectives" yet lamenting
having become a "victim" of its own "success" as the applications of the
internet have "expanded" into all "spheres" of activity and as
"enterprises" and "persons" have commenced to include their domain names
in the standard identification apparatus .. use for social and business
communications.
Comment: One thing the developers of the DNS probably did not
anticipate, namely that they gave in the generic - or "open"
TopLevelDomains - only one (.COM) to the business community and people
(individuals) since .NET was supposed to be for Networks, and .ORG for
Not-For-Profit-Organisations. It is hard to prove if the perceived
conflicts would have been less if a personal gTLD like .PERS or .NOM had
been reserved for individuals and for the freedom of expression; it most
likely would just have taken a little longer to have the business and
the intellectual property rights preservation interests appear also to
lament about abuses in .PERS or .NOM; especially if in .COM it would
have been available exclusively for Businesses who could identify
themselves with a registration certificate of their corporate status and
a TradeMark certificate, but where would that have accomodated the small
business owners around the globe? One reason for the "victim" of its own
"succes" is the fairly recent discovery of the internet by the business
community and its almost single-handed highjacking or usurpation of the
.COM gTLD domain with the attempt to almost exclude now anyone from .COM
who does not have any "business" being there.
5. RFC3 - paragr. 40. Laments that there is "no requirement" that the
applicant (for a domain name) "justify USE of a particular name; no
verification process of any contact details...; no provision for the
settling of disputes ... ; and no requirement that any payment be
tendered and confirmed before the domain name holder begins to use the
name. These registration practices have led to instances of
registrations that may be considered to be abusive."
Comment: This assumes first that Nobody has the "fundamental" right to
register a "Domain Name" for whatever purpose they desire, but that a
regulatory requirement ought to exist that anyone wanting to register a
Domain Name explain themselves, and justify their "right" to a Domain
Name. Next, it assumes that too many people or organisations
restistering Domain Names do it for "sinister" or "abhorrend" purposes
and hide behind the wrong contact names. The payment issue can obviously
be discussed, but in the past it was a matter of NSI/InterNIC policy
(for .COM, .NET, .ORG, etc.) or national registries/registrars. It
should be up to them to decide how they structure their payment policy,
not by regulatory mandate. If they find that, as the WIPO community
seems to imply, that too many cyber-pirates or cyber-squatters do so
because they have to pay within 30 - 60 days, they can always change
their payment policy. There are a number of abuses but is that a cause
for penalizing the whole world-wide community of net or web users and
potential domain name registrants into very restrictive administrative
terms so that the WIPO cyber-police can "instantly" stop any even
perceived, not even yet proven, abuses (?).
6. RFC3 - paragr. 50. Most of these requirements are already done by
NSI/InterNIC - except for registering an "agent" - which is corporate
lawyer speak for being able to serve papers for court appearances on
corporations or any businesses. That's a dubious requirement for
individuals.
Comment: Lawyers should know better, the unscrupolous will register a
straw-man as an agent if they have sinister purposes in mind, the
legitimate, and one has to believe that the whole internet community
does not primarily consist of crooks, the legitimate can always be found
unless an error creeps into the system and for that you should not even
try to execute them sight unseen, but those who use the internet for
perpetrating "crimes," as WIPO seems to imply that the crooks are
everywhere, you will have to find methods to weed them out, without
penalizing everybody on the internet.
7. RFC3 - paragr. 53. This could be a very "hollow" requirement or
statement. How can a person be so absolutely sure, that not somewhere in
earth there is a businessman or a corporate organisation that has not
registered a name exactly as the registrant wants to use orclose to or
similar to it.
Comment: If it is desired to fill spaces in application, fine. If you
need to keep bureaucrats busy to check spaces; but as a practical matter
if you intent to use this to "instantly" prosecute the poor schmuck who,
totally unaware, that in Timbaktu or Murmansk a grocer registered the
tradename "Tomato" or "Potato" or its plurals, gets a local trademark
certificate and lo and behold comes up to ICANN or WIPO or their
registries/registrars one of these days to demand that they have the
certified right to the "generic" domain name(s) above.
First you will have to develope then a comprehensive database of
literally "ALL" trademarks of the world in all classes in all countries
against which one can check - by the time that is accomplished we may as
well all stop using the internet, because someone somewhere for sure
will have a trademarked name to render most domain names useless.
8. RFC3 - paragr. 57. Here is an attempt to turn "inaccurate" or
"unreliable" registration information into an obfuscation or sinister
attempt by these unscrupolous to allow a third party "complainant" and
the registrar to yank a domain name out from under a domain name holder.
Comment: This requires that the domain name holder has the right to "due
Process" and the possibility to correct the data; only in the most
severe cases, where outright fraud with intent can be proven, should the
registrar be allowed to put the domain name on hold until the dispute is
properly solved.
9. RFC3 - paragr. 60. - 62. Requirement of Use. This is a bothersome
idea. With the current feeding frenzy to "Reserve" your domain name
"Now, before it's too late and they are all taken - even if you can't
use it right away," website developers & some registrars in the private
sector are advertising that one can reserve & hold domain names for
future use. Some legitimate domain names have been registered 1 to 2
years ago and are still "under construction."
Comment: Coming back to the earlier "victim" of its own "success" idea
it has now become evident, that not only cyberhoarders but also well
known corporations - have taken to register domain names by the hundreds
for TradeMarks / ServiceMarks incl. TradeNames but also for "Brands"
including some brands they may want to work on and introduce in the
future, companies like IBM and Proctor & Gamble are quoted the most for
having this insatiable appetite for domain name registration; this cuts
both ways.
10. RFC3 - paragr. 67. This is an admistrative function and should be
left up to registries/registrars - and legislated. It's a business
decision of the one who registers domain names. If they find that
prepayment is required - so be it.
Comment: Keep the lawyers out of this a s a requirement.
11. RFC3 - paragr. 75. Lawyers have a saying that "Possession is 90% of
the law." This should also extend to domain name holders. They should be
entitled to hold on to a name unless and until it is proven without any
doubt, that they literally have no right whatsoever to a specific domain
name. If they are in a business they should be allowed to have a gateway
interims redirection possibility, if they are not in business who says
that domain names are guaranteed trade marks? And if it is proven that
they registered the name with intent to hold a specific trademark holder
up for money, settle that in court.
12. RFC3 - paragr. 115 - 119.
Comment: While it is admirable to try to minimize court involvement,
cost and the time it takes, the domain name holders must be equally
protected under the laws and any dispute resolution procedures. None of
the dispute resolution procedures should be "mandatory" because that
could lead to the inevitable that the domain name holder is doomed to
lose, there have been already cases, where even NSI/InterNIC has more or
less aided and abetted rather the third party claimants than domain name
holders. The Domain Name holder is a direct customer and party to the
registration agreement, and should be treated as such by all registrars.
The third party claimant may have a legitimate right superior to the
domain name holder, but that has first to be "proven" not simply
"alleged;" because there could be bullying interlopers who have
discovered a very desirable domain name and now want to expropriate it
for their commercial purposes. There are as many unscrupolous characters
among the business community as the WIPO people seem to attribute to all
non-business members of the internet community. Many current domain name
holders deserve the same protection under the system or the law as the
intellectual property community wants to allow all third party
claimants.
Incidentally, DO NOT, please burden the registries or registrars to
become the cyber-policemen for the intellectual property owners. Please
keep them totally out of this policing attempt. If they are directed by
courts of proper jurisdiction or by totally free and mutually agreed
upon arbitration or mediation processes, to put domain names "on Hold"
but operationable until the final outcome of any proper procedure, fine
- but not by "mandatory" arbitration or mediation. Mandatory arbitration
or mediation will lead in most cases to automatic
"kiss-your-domain-name-goodby" policies or outcomes. The strong will
fight back, even in court. But the weaker, individuals or small
businesses, need a little protection from big bullies.
13. RFC3 - paragr. 150 - 151. This is now an expansion by WIPO to not
only deal with TradeMarks, etc. but include all intellectual property
rights into the domain names, including famous personalities, etc.Even
the U.S. Government in their 3 different papers did not invite WIPO to
expand their mandate.
Comment: WIPO is trying - despite claims to the contrary - to expand the
internet Domain Name System to cover all kinds of intellectual property
rights that are too hard to police. One previous commentator wanted to
have nano-second police action against domain names and web sites,
claiming that the whole world is full of piracy against the whole
intellectual property community. Sure, some of that may be going on, but
so is drug-dealing and its devastating impact of the youths of this
world; do you want to suspect every other person in this world of
wrong-doing every waking minute and only a handful of honest people left
over? You need to review and revise this seriously.
14. RFC3 - paragr. 165/166 - 171. #165 sounds in some ways almost like
double jeopardy, first an ADR procedure is invoked, assuming the domain
name holder wins, the claimant can now go to court and try again, and
worst of all somewhere in all of WIPO RFC3 it is suggested that the
losing party shall all cost. That should only prevail if it is proven in
court that a domain holder used a domain name fraudulently and with the
intent to defraud a claimant. Otherwise a claimant should at least pay
all of their costs if not the cost of the whole procedure, because after
all, the claimant gains the domain name and what claimant perceives goes
with it. If the claimants are free from the costs it will encourage a
lot of frivolous claims.
Comments: re: Time. The longer a domain holder had the name the less
should third party claimants be allowed to attack them. This rush to
settle ADR procedures within a "week" is just a little too dogmatic;
what if the domain name holder is away on vacation or on a business
trip, and does not return within such short time span. This needs more
flexibility. We do not all live in the nano-second-world. Otherwise you
may as well get the proverbial "big-brother" in here, since most WIPO
members seem to consider all non-certified or non-justified or
non-confirmed domain name holders as "guilty" of intellectual property
piracy - then get your "cyber-police" with "automatic" "dockets" like:
"What, you are a domain name holder? How dare you? Only members of WIPO
or their attorneys or their attorneys clients have the rights to domain
names, you are guilty as declared guilty!!! Next case.And take over all
the domain names of the world - at least in .COM - and reissue them only
to certified corporations or certified trademark holders, and all others
get confiscated.
15. RFC3 - in the high 180th to 200. The question of jurisdiction arises
or in ADR procedure the decision-maker to determine the applicable law.
Comment: Three options have bee brought up: The jurisdiction of the
domain name holder, or the claimant, or the registrar. I can think of
another jurisdiction: where the website is finally hosted. Shouldn't it
be the "user" who determines the jurisdiction, and that based on the
following choices: Domain Name Owner's Home town, or state or country;
or where it's registered, or where it's hosted. You cannot or should
never be allowed to give anyone the right to attempt to take something
away from you based on laws outside your own jurisdiction. The claimant
wants to gain access to something they don't have, a global domain name
space commensurate with the status which they claim do deserve on the
internet, if they do not have the stamina to fight for it, at their
expense, to control that part of the web, a coveted domain name, which
they claim means so much to them - then they do not deserve to be given
any time of day. By the way: #199 about Guiding Principles needs some
serious looking into and definitions. (i) rights and interests; (ii) use
- could lead to lots of disputes (Who are you to tell me what I can use
my domain name - site - for and what not? etc.) (v) Abusive Registration
- this also better be explained very clearly, because in some parts of
the world, especially under dictator ship rules, someone might
interprete "abusive" use differently than in the free world.
16. RFC3 - para. #200. - 244. Notoriety: Famous & Well-Known Marks. You
first will have to collect / establish such a list around the globe,
then in conjunction with all the national bodies of the world you will
have to reach consensus about the absolute superiority of one mark over
another.
Comment: Take the case of GM for General Motors. sure it's a well-known
mark in the english-speaking world, but may not be eslewhere. And who is
to say, that someone in another classification, say Music may not have
the trademark GM standing for Great Music, that co. may have been on the
internet from day one of the internet; and being a true internet medium
- who is going to determine that General Motors has superior rights to
Great Music? This is an idea you should reserve for the next level of
TLD's - may be under .R (?) - I would highly recommend that you do not
bring that concept into the current .COM gTLD.
17. RFC3 - New Generic Top Level Domains. Intellectual Property Rights
Considerations, etc. para.#246 - 289.
Comments: A lot of the current alleged or implied - and even some of the
actual problems - could probably have been avoided or minimized in the
following manner. First: Many individuals registered initially in .COM,
since they were not given a separate "individual" generic TLD (like
.PERS or .NOM or: you guess or come up with others), consequently many
individuals consider .COM as "the" "Open" domain space for them as well
as some businesses, not the other way around. Second: The business
community initially scoffed at the internet and its viability in the
business of "commerce" or "e-commerce." Then, when the lights went up,
they not only took to the internet they "rushed" to it causing an
incredible "frenzy" which lead then to hoarding of commercially viable
names and even "piracy" of some well known tradenames, trademarks,
acronyms, industry or professions names, etc. Third: There are many
people who would like to see more TDL's (you call them generic - I like
to see them called non-cc or non-country, because generic does not lend
itself to protection for the exclusive use by businesses, especially
those who want to strud their TradeMarks, etc.) If at least one - or
more - TLD's get assigned for the exclusive use of registered
businesses, registered TradeMarks, etc then you could invoke under those
TLD's all the rules & regulations and the massive legislation you
envision to protect all your intellectual property rights. Nobody, but
nobody, can then register anyones name, unless they prepay, bring a
corp. registration certificate, bring a trademark certificate, agree to
the ADR procedure, or agree to jurisdiction of a special court set up
for them either in Den Hag or Geneva, develop a list of all the famous
trademarks or tradenames, and so on. May be that's what the business
community and the intellectual community need. Go for it. But please do
not even attempt to louse up the current .COM gTLD. As already some
place else suggested: use may be .rSM for registered ServiceMarks, and
.rTM for registered TradeMarks, or simply .R for all registered Marks
(remember the "Marca Registrada"?), in addition perhaps .CORP, .INC, or
.LTD, .LLC, .LLP - god, one could go on and on to come up with new
TLD's. May be it would be best to make it a free for all, anyone who can
apply to ICANN for being a registry, can qualify for competency, all the
technical software & machinery that is needed, plus the appropriate
finances to survive at least 1-2 years, and propose any Top Level Domain
they propose and which makes sense to the ICANN Board. That would
alleviate this fixation of the business community & the intellectual
property rights community that they are the only ones with rights on the
internet. It would spur competiton and might devalue all the hoarded
.COM names. Next we'll need some more TLD spaces for individuals, like
.PER or .PERS or .NOM in addition to the proposed .FIRM, .INFO, .SHOP,
.WEB etc. - all sounds fine.
Sorry for the length of comments, but almost 200 pages of WIPO RFC3 make
it difficult to comment briefly, and I have left out some areas which
justify comment but get too cumbersome here. I sincerely hope that
between WIPO and the ICANN Board you reconsider this suggested
OverPowering attempt by WIPO to excessively legislate the internet - for
what I have termed the WIPeOut of the current internet. May be you
should all consider a whole new internet - leave WWW1 to the current
internet, the academics are already working on WWW2 with much higher
speeds, and for the business & intellectual property people, start WWW3
or WWW4 - then you can start regulating those from scratch.
And incidentally, I recognize the tremendous effort & time that must
have gone into this WIPO RFC1, RFC2, & RFC3 process, and I am sure the
panel members are all sincere in their beliefs and effort, but nonthe
less this whole thing needs some serious rethinking in the confines of a
"free" world and not a dictatorship of overly regulated governments
around the world.
Respectfully submitted,
Helmut Hirsch
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Date: Sat, 13 Mar 1999 07:21:11 -0800
From: Jane & Helmut Hirsch <h-domain@ix.netcom.com>
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To: process@wipo2.wipo.int
CC: comments@icann.org
Subject: ICANN & WIPO / RF3 please don't stranglehold the Internet
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Messrs. & Mdme. Francis Gurry of WIPO Internet Domain Name Process
World Intellectual Property Organisation, Geneva, Switzerland, and
Esther Dyson, Interim Chairman & Michael Roberts, President & CEO of
ICANN
Re: Administration & Management of Internet Names & Addresses a.k.a.
"DOMAIN NAMES"
Lady & Gentlemen, above, and
all respective Members on your Board/s or Panel/s, and
in consideration of the open "process" advocated here and publicized
over the Internet,
Members of the whole Internet Community,
1. In an attempt to learn more about the Internet and Domain Names and
the attempt to register one or more domain names, we/I happened to come
across - partly by accident - this incredible confusion and uproar,
which apparently has raged for the last one to two years, between the
various factions of Ad Hoc Committees, administrators, registries &
registrars of the Internet as we know it, interest groups - among them
the Internet Society(ISOC) and the Electronic Frontier Foundation - as
the U.S. Government wants to turn the administration & management
(government?) of the Internet - gradually - over to the private sector,
and the RFC's that have been sent around the world to get input &
guidance not only from the old hands but also from the users. The press
has described this process as an infighting of various factions and few
agreements on the proper process, which has led the U.S. Government to
finally issue July 1,1997 the "Framework for Global Electronic
Commerce" and the so-called "Green" Paper of 1/30/98 and then the
"White" Paper of June 5, 1998 to force a proper dialogue and the
formation of the successor to the IANA. Prior to this research we had
almost no idea that this was going on.
2. With increased curiosity further research naturally led to the ARPA
and ARPANET, the various American Universities involved in the early
research and development of the system, the National Science Foundation
and the incredible support this had from the U.S. Government and
essentially the U.S. Taxpayers (probably unbeknown to most of them); the
incredible work performed by a certain Dr. Jon Postel, at two
universities in Southern California, his involvement with the IANA and
the DNS, an incredible number of RFC's which fostered comments between
many of the early pioneers of the "internet" and then the CERN
involvement which led to the development of the WWW and then in 1992 the
U.S.Congress allowing the NSFNET to be OPENED to Commercialization. (+
Understand Dr. Jon Postel passed away not too long ago, and feel that
the man earned a lot of respect for some quiet work he did in conjuntion
with the DNS over an almost 20-year period. That is something! My
respect.)
3. Up to this point, prior to 1992, the "Internet' or "Web," was
apparently used for research primarily by the academic & military
community, via www even beyond the U.S.A. and this time evokes among
some of the early participants reminiscences about the "early" days of
the internet and the perceived "purity" of the net. When in 1992 the
U.S. Congress opened the "net" up to COMMERCIALIZATION - all hell broke
lose. While obviously IBM (starting in 1986) and most if not all
computer companies registered their Names / Domains on the net, some
commercial entities in the U.S. and around the world gave it hardly any
thought, or action. As a matter of fact, some companies, and this
includes MICROSOFT, held early on the opinion that the "net" -
(paraphrased): "would not amount to anything of real value..." or words
to that effect, then some time later turned around and realizing their
earlier mistake, in the Microsoft case, they turned 180 degrees trying
even to "control" it, especially after a certain Mr. Andreesen of Mosaic
fame got involved in a company called Netscape and dared to control the
"browser" business (half the world didn't even know what a browser was)
and the rest of that episode is history and even battled about between
Microsoft and the U.S. Government. But what the early purists of the
Internet bemoan is the Commercialization of the net, the business people
discovered it, and then - in the minds of those purists - started
ruining it.
4. Now arrive the Johnny come latelies to the internet and want to
register their company names or tradenames or trademarks and even
"brand" names as Domain Names, and what do they find, two types of
rogues: the worst rogue is the type subsequently labeled as
"cyber-pirate" or "cyber-squatter" and there are a few similarly
derogatory names floating around (like: "cyber-hoarder" - - - etc.)
because these people dared to go through the telephone books or the
commercial registries and found that many companies had not yet
registered their names so they went ahead to register them, first-come,
first-served and that has led to squabbles - see later; the other rogues
are individuals or perhaps some small companies or even competitors who
had either the idea that a certain name would sound good, or would be
memorable, consisted in some cases of the initials of an individual's
name (one case: mtd.com ? I think I remember right), or - in the
internet-spirit of free expression & derogatory expression - would
express their anger or dissatisfaction with a company, or its products,
or service,or terms of employ-ment - and registered names they did not
really know belonged to some company not in their direct vicinity or as
in the latter case it would be registered as Netscape-sucks.com, etc.So,
we have the beginning of cyber-suits and pressure against the registrars
& registries by businesses who seem to think that the internet was
invented for them and that a Domain Name is synonymous with Copyright,
ServiceMark, TradeMark, TradeName or even BrandNames (next thing will be
"slogans" or what the advertising community calls "tag lines," (there is
an Insurance Company out there with the tagline: The Quiet Company - now
wouldn't that be a good domain name? But watch out, whoever may have
registered it: The Corp. will soon be on your Web-site's front "door.")
5. And this brings me to the Point: There seems to be the perception by
the business community or the Patent & Trademark Attorneys that every
other Domain Name is preemptively "taken" away from presumed "rightful"
owners in the business community, who may reside anywhere in the U.S.A
or actually anywhere in the world, in places some of us may not ever
have heard of, have a local or at least a national registration of their
company name, or service mark, or trade mark, or trade name, or, or, or
and can according to those folks come tomorrow to your door step and
demand that any - so far held and assumed rightful domain name ownership
of yours - is rightfully theirs. If you are a "cyber-hoarder" you are
doomed, the business community, and the trademark attorney community, as
well as judges, will tell you that if you do not have a rightful
business attached to the domain name, it belongs to the "claimant,"
ironically, if you have not "used" the domain name in the same line of
business or with confusingly same or similar merchandise it is
questionable, at that point, if you have harmed the "claimant."
Non-theless, your registered, but hoarded domain name will be gone, and
if it goes to court the powers which represent the "claimants" of this
world - want you not only lose the Domain Name but also pay for all the
cost the poor claimant had to go through to regain what he did not have
before, but now has claimed as rightfully his/hers/theirs.
6. If you are not a hoarder but thought that the name was fun and
sounded good, not realizing that someone somewhere has actually a
trademark registered for i.e. shoes, and you are in the desktop
publishing business, HushPuppies are probably too well known but use any
other name that sounds good to a desktop publisher, maybe "Hush-Pup" and
could also possibly have been used somewhere by a shoemaker. Well now
you have to prove, first to the registrar/registry whether or not you
have a trademark for your desktop publishing business, you most likely
don't since your service business is local, but registered the domain
name because you also wanted to get into the website design business,
you have just started announcing that to the internet community, but
without a trademark certificate the registrar will put you "on hold" and
either give the claimant what is demanded or you're in for a court
fight. And I could go on and on with many scenarios.
7. What seems to me so incredible with WIPO/RFC3 is the perceived
assumption or representation that due to the internet there is an
incredible amount of cyber-piracy or cyber-squatting going on that a
whole new & convoluted cyber-legislation with specific rules &
regulations about the whole registration process, the ongoing
administration, tracking of the registrants, policy that any third-party
claimant can just announce their rights and then a special procedure
comes into play whereby the registrant first is considered "guilty"
until proven otherwise, and has to expose him/her/themselves from day
one, by agreeing to an arbitration / mediation process which gives the
registrant very little recourse to due process, timely discovery, and
finally fair evaluation of registrant's right(s) versus the claimant.
The Domain Name will most likely, under the described procedure be put
on Hold, the registrant may be given the choice / opportunity to select
another domain name - if he had the name for several years, chances are
that by now all the good names are gone, a very long one will have to
replace the "hush-pup" - like "DesktopperwithoutDomain" - but what will
be worst, under the proposed rules the shoemaker will not want to pay
much in costs for this change and the former domain holder - now
desktopperwithoutdomain will have to spend a lot of money, to
reintroduce himself on the internet, pay new registration fees (although
it is implied that the registrar will credit that?),etc. etc.etc.
8. According to InterNIC statistics for 1996 they had to invoke their
Domain Name Dispute policy 745 times, had probably 460,000 registrations
(?) = approx. 0.162 % or 1 in every 617th registration, in 1997 they
invoked it 905 times but registered approx. 962,000 domain names = 0.094
% (less than a tenth of one percent) or 1 in every 1,063rd registration,
and in 1998 they invoked the policy 838 times but registered so many
more names, 1,900,000 approx. accor-ding to their statistics, or 0.044 %
(less than a twentieth of one percent) or 1 in every 2,267th
registration. Now, I understand that these are only the cases where
third party clai-mants go directly to the registrar (InterNIC), and that
more cases are settled or litigated outside the system, in private and
seldom publicized, probably because the domain holder is embarrassed,
feeling badly, and the third party does not want to acknowledge being
the big bully against the litle guy, so they walk away quietly. Be that
as it may, even if one tripled or quadrupled the NSI / InterNIC figures
to show the whole picture for 1996 may have been: 2235 to 2980 cases =
0.48 to 0.65% or 1 in every 150 - 200th registration, in 1997 possibly
between 2,700 and 3,600 cases = 0.28 to 0.38% or 1 in 266th to 354th
registration, and in 1998 between 2,500 and 3,350 cases = 0.132 to
0.176% or 1 in every 567th to 756th registration. These figures are not
as high as the respondents out of the trademark enforcement community
try to make them sound. Granted, you would like to have no work, every
claimant walks right in and walks right out, every domain holder has
already pre-signed his "say-good-by-to-your-domain-name-procedure" and
all the national, some times even remote trademark-claims, are wel-comed
with open arms.
9. But haven't you forgotten something? First, there are also some free
speech issues involved primarily in the non-commercial sector, and even
in the commercial sector, all trademarks are based on geographic
territory(ies) with natural or national boundaries, and trademarks are
not normally given in all 35 international classifications or the
remaining service marks in all of the remaining 5 service mark
classifications, but the internet is perceived as worldwide, are the
local and limited to some classes trademarks/servicemarks now elevated
to attached "worldwide" status and categorically for all "classes.?" I
believe that in WIPO/RFC3 you are trying to OVER-REACH in this area
alone. So that needs some serious re-thinking.
10. WIPO/RFC3 talks about "open" gTLD's and "open" ccTLD's versus
"restricted" ccTLD's, by restricted apparently in most cases is required
that the registrant has a domicile within the borders of the
ccTLD-country, may have to document that it's a registered company,
and/or what use they register the Domain Name for, etc. The restricted
ccTLD's (country top level domains) are no issue here, but the open
ccTLD's could be and the gTLD's certainly are. By the mere term that
gTLD's are designated as "generic" does it not strike you odd, that you
fight for trademark rights in "generic" Top Level Domains - even when
it's in the .COMmercial TLD? Years ago one could not even register
trademarks based on GENERIC names, unless they were in specifically
designed letters (Cursive or Gothic,etc.) and the internet does not
allow for that. It is my personal opinion that the .COM generic Top
Level Domain has been and still is being highjacked by commercial
interests to the detriment of individuals or small enterprises which
often don't bother to trademark their names or brands, get intimidated
by high priced trademark attorneys - I was told recently at $500. per
hour (!?) in Washington,D.C. or New York - who as a preliminary tactic
write a very forceful letter and threaten with all kind of legal action.
Naturally, some of the less sophisticated small business people or
individuals will promptly cave in, only the strong ones can fight that
kind of attitude.
11. And neither the "Internet" nor the "WorldWideWeb" was developed or
designed from the beginning for commercial entities. Who are the
squatters? Someone could probably make a case, that the business
interests are really the squatters(?) The first time commercial sounding
top level domains appear there is only one among the generics .COM; .INT
is apparently reserved for INTernational organisations (not for
international businesses?), Australia & UK have experimented with .co or
.com, i.e. .com.au but it seems also possible to have .au.com, wheras in
the UK, the .uk always appears as the country's top domain. If the
business community feels so strongly, that now that they have discovered
the net / web, that they desire their domain names to reflect their
trade names or trade marks, etc. they should not be afraid to discuss
and negotiate with people who came to the internet early and registered
a company's name/s - and if it can be proven that it was done with
"intent" to either discredit the entity or to hold them for ransom,
perhaps even that can be negotiated, and ought to be cheaper than
protracted court cases - on average domain names are traded in the
$5,000 or less category, only occasionally do they get sold in the
$20-35,000. range, and once in a fluke for $1,000,000. as for
AltaVista.com (but that was a special situation) and besides the way
inter-net companies are being valued these days by the World's greatest
gambling place Wall Street, their Domain Names often have to be worth
$500,000. to $1,000,000. or more. If AT&T would ever be sold, what value
do you think will be assigned to ATT.com? So, all this hue and cry by
the commercial interests seems to me a little disingenious, except for
an adage I heard a long time ago, back in the old country when I was
still a youngster. I was working for a fellow, and he always moaned and
groaned, how terrible the business was, all the costs and expenses, and
one day his wife took me aside and said: "don't listen to him, those
that have the most also often complain the most."
12. If you really want to protect strictly the Commercial Interests,
then introduce a special TLD (just don't call it g = generic!) for
ServiceMark, TradeMark, or TradeName holders. As far as I know can't use
.SM = the ccTLD for the country of "San Marino", nor .TM = the ccTLD for
the country of "Turkmenistan," but I believe .R would be available -
unless the technicians can't deal with one-character-TLD's, otherwise
try .rSM = for registeredServiceMarks, .rTM = for reg.TradeMarks, and/or
.rTN for reg. TradeNames - in addition other people have already made
suggestions for .INC or .LTD or .CORP, could also have .LLC or .LLP -
etc. So, there are plenty of opportunities to accomodate - over time -
this insatiable appetite the business com-munity seems to have developed
suddenly for Domain Names.
13. Lastly, I mention the spirit of the "Internet." The internet was
developed in a much freer and lighter spirit than it is being approach
today by business interests. As I mentioned above the purists from the
early days still bemoan that the internet ever was opened up to the
business world, they say the original soul of the internet is gone, the
freedom of expression, the free communication, the use for anything that
was not life-threatening to others. Now they have to contend with, also
because of the rapid growth, what is sometimes referred to as
"net-pollution,"as well as the slow-down a.k.a. the "World Wide
WAIT,"governments trying to get into it with rules & regulations, Irony;
just as the U.S. Government is trying to get out of the internet and
does not really want to rule or control it, other governments around the
world try to regulate the internet. Are they out of their minds? Even in
the WIPO/RFC3 2nd paragraph (iv) there is a lament about the the absence
of a central rule-making entity... exhibited by the last sentence in
that sub-paragraph: "There has not been, ...a central rule-making entity
that has exercised comprehensive legislative authority over the
internet." Is that sentence supposed to say: but now we will create it
...(?) ...as the first part of the sub-paragraph talks about: "Compared
to other social INSTITUTIONS ..." and prior... "NO central point of
authority..." That's the beauty, that's what made the internet what it
was, now don't come along and destroy it!!! Please!!! Sure some
improvements can be made and some strengthenings, for instance may be
prepayment of registration fees will slow down the cyber-whatevers you
so abhor, or distributing the registries and registrars over several
entities may improve something, although I am of the opinion that from
appearances the NSI/InterNIC seems to have done a pretty creditable job
with what they had to do, even if it was probably a little too
monolithic or monopolistic. But WIPO and ICANN should really RE-THINK
this whole RFC3 or RFC4 Process before you get too far carried away into
a massive legislative machinery - which by the way was not the requested
mandate of the U.S. Government, in either of their 3 specific papers
relating to this and as quoted first above.
P.S. I may come back to you once more before the filing deadline, which
I interpret now having been extended to March 19, 1999. It is 6 a.m.
and I have been typing for quite a while - beside my reading of these
200 to 300 plus pages recently.
Respectfully submitted,
Helmut Hirsch
- for self - and the Global Villagers Foundation (in formation) trying
to set up a website.
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