Re: grandfathering of .us domains?

[Brett Glass <brett@lariat.org>]

At 05:47 PM 5/17/99 +0100, Jeff Williams wrote:

 > Agreed.  And if they are not attempting to sell the same type of goods
>using that Domain name or TM name there is not TM conflict, unless
>one of the other party can show confusion as it is related to TM law.

But there's still a domain name conflict. And this is a big problem.
Geography and the nature of a business can't be taken into account,
because there's only one THATNAME.COM.

>But ICANN and WIPO don't see it that way, Brett, which was my broader
>point, in addition to as it applies to .US ccTLD for purposes of this
>discussion...  

If ICANN and WIPO begin grabbing people's domain names in a way that
seems arbitrary, there will be mass rebellion and perhaps huge
lawsuits. Again, now that a judge has ruled that domain names are
property, the "takings" clause comes into play. 

>SO the question remains how can any or most of those
>already Domain Names in the .US ccTLD name space be grandfather
>given the current ICANN "Accreditation Policy" and the WIPO RFC-3
>"Final Report"?  Well the simple answer is that unless you have that
>Domain name registered as a TM, and soon, you are likely to stand
>the chance of facing a legal challenge, that you may not wish or be able
>to afford.  Or, ICANN will simply take it from you!

One doesn't need to be rich to walk into a Federal courthouse and file a
lawsuit. And businesses which see their existence as dependent upon
ownership of a unique and mnemonic domain name will do so, even if
it DOES cost a lot. What else can they do? It's a matter of survival.
Even "Mom and Pop" businesses would fight for their names.

> > Let's take an example. In a conflict over the name STONE.COM, who would win?
> > The Stone Family, which has been doing business as Stone Hardware for 100
> > years?
>
>   This will depend if the Stone Family filed a TM and a Domain name of
>STONE.COM before anyone else did, in both cases, according to WIPO
>and the ICANN.  Not a very reasonable scenario is it?  Or, the Stone Family
>can enter in to binding arbitration, another very expensive affair, with all the
>other parties claiming or making claims to Stone.com, if the Stone Family
>have that Domain name registered and in use.  Or they can register
>a new Domain Name of something like Stonehdw.com and inform all of their
>current customers of the change.  Yet another rather expensive and unfair
>situation should the Stone Family been first to register the original Domain
>Name of STONE.COM or STONE.COM.US, for instance.

This is when the lawsuit is likely to commence.

 >> A "first come first serve" policy is slanted against latecomers to the Internet,
> > who may have come late by no fault of their own (e.g. by being in a less
> > developed country). It also hurts the development of new businesses, which we
> > certainly don't want.
>
>   To some extent I agree with your contention here.  This is partly addressed
>with the new Trademark classifications that have been provided by law from
>the USPTO on "Things Internet" such as a Domain Name, to also be registered
>as a Trademark as well.  What is in question is or does this apply to those
>that have commercial domains registered under the .US ccTLD?  

Why not? The domain name is property whether or not it is a trademark -- or so 
says the judge. Bankrupt companies have already auctioned off names that were
dictionary words -- rather than trademarks -- as part of the liquidation process.

 >> I'd beg to differ. Many people (including me) would assert that names are
> > words. My last name, in particular, would have been a valuable commodity
> > had I thought to "grab" it several years ago before the "gold rush" on
> > the dictionary began. But I cannot use it now, even if I have a company
> > whose name contains "Glass." Is this fair?
>
>   It would depend on what you were going to use that potential Domain Name
>for.  Is it commercial or noncommercial.  In addition, if non commercial,
>it cannot be deemed as "Confusing" to an already existing business with a
>previously registered TM.

Are you familiar with trademark case law? People HAVE been denied the use of 
their family names as the name of a business when someone else has registered 
a trademark. Sad, but true. A good naming scheme for the Internet would help 
us to avoid such obviously awkward and unfair situations rather than making 
them an everyday occurrence.

 >> And who gives WIPO or ICANN the authority to yank a company's name out
> > from under it?
>
>   The DOC and in particular the NTIA, which is sponsoring this very list has
>already given ICANN in part this authority and has solicited WIPO to do a
>study, which has now culminated into the WIPO RFC-3 "Final Report" which
>may weigh heavily on the answer to your question.

The DOC cannot trample the Constitution. If domain names are property,
then they can't be appropriated without just compensation.

> > Or a family's name? (The current system doesn't even allow
> > a name to be allocated to more than one party; it's winner-take-all,
> > a situation which in general leads to unsatisfactory solutions.)
>
>   Unsatisfactory to whom?  To others that have the same family name
>perhaps?  

Unsatisfactory in that great harm is done to many people and businesses.

 >> We must face facts. Forming another organization (e.g. ICANN), or delegating
> > solutions to a worldwide authority (e.g. WIPO) cannot fix the simple fact that
> > the foundation on which the system is built -- i.e. "owning" a word or name
> > which is legitimately applicable to more than one party -- is faulty. A
> > paradigm that better mirrors the real world is needed.
>
>   Faulty it is to be sure, but that is the way of the real world.  

The Domain Name System isn't "the real world." It's an artifice -- only one
of many possible ways of naming computers and resources on the Internet. 
A system that better mirrored the real world, in which there ARE overlaps,
ambiguities, etc., would in fact work better for all concerned.

>But my concern
>is dealing with the subject of this thread in this context and how do we
>come up with a acceptable, but not perfect solution.  Do we do so
>based on the NTIA's own White Paper?  I say yes.  

Ira Magaziner's white paper is inadequate in that it does not "think outside 
the box." It assumes that the current implementation of DNS is the only way 
to do things. It is time for a new and better naming and cataloguing scheme.

What would the characteristics of such a scheme be? Among other things, it would:

  1. Allow for multiple entities with the same name without according special
     privilege or advantage to any of them;
  2. Prevent a single entity (in particular, a business) from seizing exclusive
     use of a generic term, such as the name of a commodity;
  3. Prevent newcomers to a market or business category from being disadvantaged 
     relative to existing players;
  4. Allow for truly decentralized registration and operation (so as to avoid the 
     current disastrous situation in which one company holds the keys to the
     kingdom and refuses to relinquish them);
  5. Resist tampering (It's currently FAR too easy to muck up someone's
    domain registration by impersonating him or her in a message to InterNIC);
  6. Enable instantaneous changes to primary server IP numbers, rather than requiring 
     an overnight wait (so as to allow for an immediate shift to a backup in case of
     disaster);
  7. Provide a more generalized database of information rather than just a database 
     of IP numbers, host names, and mail servers;
  8. Protect registrants' privacy and avoid exposing them to spam;
  9. Make it simpler to set up and update secondary servers; and
10. Provide hooks for backward compatibility so that the transition to a new
     and better system can be graceful.

In short, folks, it's time for some serious re-engineering. Remember that the
original designers of DNS did not contemplate a global, commercial Internet.
They were looking for a simple fix to a nagging problem: the growth of the
ARPANet HOSTS.TXT file, which was growing too large to be replicated on
every machine and was obsolete on most of them at any given time. (I was 
earning my MSEE at Stanford at the time, and had long discussions with some 
truly brilliant, unsung Internet pioneers -- such as Erik Fair and Mark 
Lottor -- about the problem.)

This first-pass solution -- DNS as it exists today -- was not meant to be the 
final one. To frame policies based on an assumption that it IS the final one 
is both shortsighted and dangerous.

Hopefully, we're smarter than that. Let's take what we've learned from this
early prototype (for that's what it is) and design the next generation --
something that will last. Something that will avoid conflict rather than 
leading us into the thick of it. Something that will naturally promote
competition and leverage the wonderful anarchy and chaos that is the 
Internet, rather than being inimical to it. Esther, would you like to work 
on this? Everyone?

--Brett Glass