Re: grandfathering of .us domains?

[Jeff Williams <jwkckid1@ix.netcom.com>]

Brett and all,

Brett Glass wrote:

> 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.

  Oh I agree completely here.  And it seems that ICANN and WIPO
are content to deal with this in a arcane and arbitrary or nearly
arbitrary manner, without, or with very little consideration for existing
US law, not to mention International law and practice as well.

>
>
> >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.

  Well it won't be arbitrary to be sure.  The ICANN and WIPO will provide
plenty of logic or reason based on their own opinions of course, that will
justify any confiscation of a domain name.  Of this you can be sure.

> Again, now that a judge has ruled that domain names are
> property, the "takings" clause comes into play.

  Takings clause can be overridden under certain circumstances, such as
some of those that WIPO and ICANN would suggest, such as offensive
Domain names, or Domains that have a content that may be offensive
to the internet community in their opinion.

>
>
> >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.

  True, but you will need to have a substantial sum, at least for some
mom and pop business with a Domain Name dispute of some sort,
to be able to adjudicate it or even possibly worse to arbitrate it under
WIPO's ADR arbitration procedure.

> 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.

  Agreed, and I feel this is both unnecessary and easily avoided, as I and
we [INEGroup] have suggested and have been suggested by many others
as well.

>
>
> > > 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.

  Yep.  And this takes us full circle, doesn't it?  And why the subject of this
thread regarding .US and grandfathering becomes a problem given the
current direction, not to mention .com, .net, .org DN's as well....

>
>
>  >> 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 agree completely with you and the various judges that have ruled in this manner.  But
ICANN and WIPO do not agree with your contention here.  Hence, we
have a serious disjunctive.

>
>
>  >> 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?

  Yes I am, very.

> 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.

  Very true indeed.  And in some cases unjustly so.

> 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.

  I completely agree.  And several have been suggested.  Even and extension
of the existing DNS system that would accomplish this with additional
TLD's and additional Root servers in a shared root server structure would
elevate much of this problem in several obvious ways.  I have suggested
such an idea, but ICANN want's to stick with the existing legacy system.

>
>
>  >> 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.

  True, it is however difficult in some cases to make an accurate evaluation
as to what that value is or might be over time.

>
>
> > > 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.

  Good answer, a nd again I agree.  But I ask this question to garner an
answer.  You provided a very good and simple one.

>
>
>  >> 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.

  Yes, but is is PART of the real world now.

>
> A system that better mirrored the real world, in which there ARE overlaps,
> ambiguities, etc., would in fact work better for all concerned.

  Agreed in as much as this can be done.

>
>
> >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.

  Agreed.

>
>
> 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.

  Good points all here.  And I would add, that many have been suggested
before as well as what I suggested as a extension of the existing legacy
root structure of the DNS would provide for.

>
>
> 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

Regards,

--
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