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[Comment-Ip] Comments on WIPO Domain Name report.

[to the non ICANN recipients - please feel free to forward this as you
wish.  I wouldn't have written it if I didn't think that something was
seriously off the rails in weighting Trademark rights above all other legal
precedent in the use of names.]

I am not an intellectual property lawyer, but in my 47 years I have learned
that law is so specialized and arcane that it is possible for the law to
lose its way.  Perhaps that gives me greater standing on this matter, for I
am merely a citizen with a name. And I happen to be a citizen who helped
create the Internet, and I happen to have chosen a name for my use as a
domain (REED.COM) a number of years ago, by which I have been happily known
within the community for a number of years.

I am afraid that by casting the issues as if they centered on "intellectual
property" rather than other traditions of law and custom such as the law of
contracts and the customs of interpersonal communications, the ICANN, WIPO,
and governments are distorting the debate.  This distortion, if unchecked,
if allowed to color the public's perception of how names are used, and of
their value in merely enabling communications, will harm many persons, and
create little good.

My name happens to be Reed.  It is a name with a long and distinguished
heritage.  I descend from a long line of Reeds, going back to the early
17th century in the United States, and to a longer line of Reeds in England
before that.

It has never been an issue that many others have the name Reed, nor that
many others have the name David Reed, nor even that there are two Drs.
David P. Reed who are well-known in the telecommunications industry (the
other works for Cable Labs).

Certainly there has never been a way to take away my right to be called
David P. Reed at the whim of a richer man who happens to have that name.

I develop this argument to this point to illustrate a point.  That point is
that Trademarks are not the only legally sanctioned naming system relevant
in the world.  In fact, personal names (and the names of companies) have
been around and managed by common law for many years before the protections
in trademarks began to be invented.

Names of persons are obviously not trademarks, and names of legal persons
(such as corporations) are obviously not trademarks.

So I think I have established quite clearly that trademarks do not form the
primary regime in which the common and customary use of names are regulated.

I hold reed.com, not because it is a trademark, and not because I intend to
use it to differentiate some business or build value into it, but because
it identifies me for those who wish to communicate with me.  As I recall,
that was the original reason for the Domain Name System - to provide a
namespace that facilitated communications, not a collection of "brands"
that allow the creation of brand value.

Other Reeds are free to choose other variant domain names (they could
choose Reed.org, Reed.edu, DavidReed.com, Reed2.com), just as other Reed
parents may choose different forenames, different middle names,
patronymics, etc. in the regime of real names.

But because the Internet is now (perhaps only temporarily) viewed as having
its best and highest value in support of Commerce, there is a temptation to
confuse naming with Trademarking, a practice with an entirely different
tradition, linking it to the tradition of exclusive licenses from the
sovereign (letters patent, etc.).

This is the basis of the WIPO proposal.  It is wrong.  It is very wrong.

At some point, I expect some of the many corporations that own trademarks
that relate to the word "Reed" (some because a founder may have been an
ancestor of mine, some because they named their company after a swamp
plant), to seek to dispute my right to use "Reed.Com".  Though they have
never used that name in Internet communications, they will be given the
"right" to bring millions of dollars to bear on the dubious errand of
disrupting my communications with friends of long standing, business
partners, etc.

Perhaps I might claim some "fame" as a Reed who helped argue the boundary
between TCP and IP into existence, as a Reed who co-wrote a paper on the
End-to-End argument that has served as a core design principle of the
Internet, etc.  But these are small achievements that have led to people
knowing me and having interest in communicating with me occasionally, not
creators of "brand value" in my name that demands protection because I
create jobs or products in profusion.  But how much does that "fame" count
against the fame of other Reeds of distinction?

It was never my intent to claim Reed.Com because I wanted somehow to
pre-empt the rights of any of these Reeds in their trademarks, of which
there are many, many.  There are Reed candies, Reed book-labels, ... and
their trademarks happily coexist.  ReedCandy.com may well be free at the
moment, and Reed.Candy. is certainly free - the notion that a trademark is
like an adjective, that it never stands alone, is part of the way that
trademarks deal with namespace collision.

However, the idea that names such as my "Reed.com" - chosen and granted in
good faith, and which are unambiguous because they have never been used on
the Internet before to mean anything other than what they are - can be
disputed and taken by newcomers who claim a privilege based on their
economic power alone, that idea is outrageously unfair.

A man's name, once taken, should never be taken away unless undue harm has
been caused, not merely economic, but harm to society's public good.  A
legal person's name, once taken in good faith, and without intent to
confuse or defraud, should never be taken away without due process and
compensation.  Only after these two principles are applied, should we focus
on Trademark - a modern right, nowhere near as old as the naming of persons
and businesses.

The use of names to enable communications - to address correspondence, to
establish identity for purposes of introduction to third parties, etc. has
a much longer tradition in law, I believe than does the use of trademarks
in the realm of reputation and advertising.  The use of names for
communications has to its roots in the ancient days of contracts, of
agreements, etc.

It is this older, common law use of names in custom and contract that
should rule Domain Name regulation.  The rights of trademark are totally
secondary to this use in law.  That I should live in fear that my long-used
domain name might be seized, and my communications disrupted at any time at
the whim of a commercial entity who has had no prior use of a Domain Name
for any purpose whatever, is an absurd result that should _never_ be
allowed to happen.  It is as bad as if some person were allowed by virtue
of having more money & lawyers to start impersonating me to confuse my
friends, gain the benefits of contracts I have signed, and to become owner
of my house.

Though not a lawyer, I think that this commonsense view of the custom and
law of names has been systematically ignored by the commercial interests
proposing the WIPO report under consideration.

That report should be discarded, and the whole issue needs to be rethought.
 At best, the process they propose should be used only after it is
established that the names in question fall entirely within the domain of
trademark law rather than the more ancient tradition of names as identities
of persons.

I personally would be happy to suggest ways that Domain Names could be
better managed.  I suspect that including people who do not specialize in
narrow issues of Intellectual Property (lawyers or lay persons alike) would
result in better rules.  In any case, at least one person who can stand for
the principle that Trademarks are not the only use of names should be
included in the re-evaluation of these ideas.

- David
WWW Page: http://www.reed.com/dpr.html