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Re: Objection to Names Council Report on Mandatory Arbitration

Kathy and all,

KathrynKL@aol.com wrote:

> To the NCDNHC:
> Although we are still in formation, there is already an important issue
> facing us.  Since the last meeting of ICANN in Berlin (late may), a group
> called the Names Council has been meeting.    The names council is the
> executive committee of the domain name supporting organization (DNSO), and we
> (the non-commercial domain name holders constituency) are one of seven
> constituency groups in the DNSO.

  It is possible that the NCDNHC will be one of the constituency groups, however
this is not certain YET.  None the less your point is well taken and is of great
importance to ALL stakeholders of the internet, not just Constituencies or
potential constituencies.  In addition the correct designation is the pNC
not the NC as the NC is yet to be elected, and the PNC is under some cloud
o legitimacy in it's very existence at the moment...

> I am very concerned that the names council is going forward with a report and
> recommendations for an alternative dispute resolution mechanism without our
> (the NCDNHC) input and concerns.  The topic is mandatory arbitration -- to
> which all domain name registrants would be bound by contract -- with the
> creation of a new worldwide crime -- cybersquatting.

  Cybersquating is NOT a worldwide crime, yet!  It is also not adequately
defined either.  But otherwise I agree that your concern here is genuine
in nature, and the pNC should not be moving forward with any considerations
in this regard until the "NC" is seated through election's.  At that point the
overall decision should be in the hands of the GA for final approval, as a
matter of complying with the White Paper properly.

> Alternative dispute resolutions procedures for cybersquatting are
> controversial because there is no international law of trademarks and fair
> use.  While there are some treaties on trademarks, they address commercial
> issues only -- not the complicated and fuzzy line between commercial use of
> words and noncommercial use of words.  Who owns basic words like APPLE or

  Good point!  >;)

> According to NSI's dispute policy -- and similar rules proposed by the World
> Intellectual Property Organization (WIPO) -- you have a much better chance of
> keeping a domain name if you are commercial owner with a trademark (like
> Apple Computer or Pony International) than a noncommercial domain name holder
> who is engaged in political or community speech (such as an Apple political
> party or a Pony Lovers Club).    This is exactly the reverse of traditional
> trademark law and fair use in most countries, and when the cases reach court,
> the legitimate non-commercial domain name holder wins.
> I think we in the Non-Commercial Constituency have great reason to be
> concerned about the alternative dispute resolutions  proposals under
> consideration.  Our groups -- and the whole noncommercial community we
> represent -- will be the targets of these arbitrations.  It is our domain
> names at stake.  In light of this, I don't think the Names Council should be
> meeting on this important topic without our elected representatives and
> formal input.

  Completly agreed.  After all they are the "pNC" not the elected "NC"

> The report can be found (rather buried, I think) at:
> http://www.dnso.org/dnso/notes/19990707.WGA1.html. Only eight comments have
> been received to the Preliminary Report:  2 oppose the report and the
> cybersquatting proposals because they will hurt noncommercial users of the
> Internet; 2 are from the International Trademark Association and favor the
> proposals; 2 deal with the famous marks issues (the subject of a future
> report) and 2 are from Jim Fleming and deal with an alternative domain name
> system and structure.   That's hardly a mandate for going forward.

  I thought Jim's idea was workable...

> I have been an observer on Working Group A, subgroup D, on behalf of the
> NCDNHC (self-appointed) and I can tell you that the discussion has been
> minimal, yet there is a section of the report about our subgroup's issue
> which the subgroup never reviewed or agreed to!
> The NCDNHC is working hard to self-organize.  We are doing what we were asked
> to do by ICANN -- create a structure and organization for the non-commercial
> constituency.  We now need some time to discuss these very serious proposals.
> I don't think it is too much to ask ICANN to keep the question of mandatory
> arbitration and cybersquatting in the Names Council until the November ICANN
> meeting.  That's not a long time, and without the Non-Commercial Constituency
> buy-in, I don't think the Names Council has a consensus from the Internet
> community for going forward.

  Again agreed!  However you realize that the ICANN (Initial?) interim Board
doesn't give a "hoot" what the Constituencies think...

> If you share my concern, or disagree with it, please let me know.  I will
> keep track of the responses over the next few days and write a draft report
> which I will circulate to the Constituency early next week.
> Kathy Kleiman
> ---
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Jeffrey A. Williams
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