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Re: [IFWP] Policy proposal (was: 4th WIPO Panel of Experts member signs ICANN petition

Kerry and all,

Kerry Miller wrote:

> Karl wrote,
> >       - Domain names may be used in any way, or not used at all, at the
> >       pleasure of the domain name holder, except that a domain name may
> >       not be actually used to infringe upon the rights of others in their
> >       names or marks.
> >
> >       - Such infringement occurs when the use of the domain name
> >       materially interferes with the free exercise of the legitimate
> >       rights granted to the other by statute or long established custom
> >       equivalent to law.
> >
> >       - If such infringement occurs, then the domain name holder may be
> >       compelled to refrain from the infringing use, but may not be
> >       compelled to transfer or release the domain name.
> Your phrasing suggests that one could distinguish between
> 'domain name' and 'the *use of a domain name,' especially in view
> of the argument that the Registry database is intellectual property.
> That is, the holder of a domain does not 'use' the domain name; it's
> only use is by the database to reference the domain's IP number. If
> there is trademark infringement -- for instance, by its pointing to a
> site which infringes on legitimate business -- then that is the
> *registry's liability, not the *regisrtant's.

  In part I agree that it this potential is the "Registries" responsibility.
But in part I would argue that it is also the registrants and the Registrars
responsibility as well in the instance of alleged infringement.  Existing
TM law and case law around this sort of instance is in extant as well.
But in most cases ALL of the responsibility regarding an alleged infringement
is on the registrant.  Maybe this is proper, and maybe it is not in a real
sense.  However, I do have to say that the Registrant should as a matter
of responsibility "Do his/her homework", so to speak before registering
a Domain Name.  I would also argue however that the registrar should
do so also before allowing that DN to be "Officially" registered, or at least
do a preliminary scan on the requested DN against known TM names...
This is not foolproof protection but would go a long way in keeping some
assemblance of harmony.  The real problem with my suggestion is that
it is the USE of that DN that is in question here, hence putting the
majority of the responsibility back to the Registrant.  I can't see clearly
where the Registry has much if any legal responsibility and it is a
database function primarily.

  This is none the less a good area or point that both you and Karl have
revisited here, and one that is not properly and even adequately
covered in the ICANN's arbitrary "Accreditation Policy" presently.

> In this case, wouldnt the
> remedy be not to suspend the domain, but to remove the name
> from (that particular) registry?

  No, not necessarily, but is one solution that could be imposed.  But it
should be the one of last resort.  Removing a DN name from a registry
Database lends that name forever to be out of bounds, and that would
not be a wise thing to do if it is not necessary.

> kerry


Jeffrey A. Williams
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-447-1894
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208