browse comments: ICANN & WIPO / RF3 please don't stranglehold the Internet

ICANN & WIPO / RF3 please don't stranglehold the Internet
Jane & Helmut Hirsch (h-domain@ix.netcom.com)
Sat, 13 Mar 1999 07:21:11 -0800

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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.