Re: [ga] A TLD for Trademarks

[Jeff Williams <jwkckid1@xxxxxxxxxxxxx>]

Dr. Dierker and all former DNSO GA members or other interested
stakeholders/users,

Agreed.  Granting prior restraint to large IP interests without so much
as a how
do you do to the vast majority of Registrants/stakeholders/users, is
severally
limiting a significant and rapidly growing part of free speech and
freedom of
expression.  Not to also again mention, the deterioration of free trade
as yet
another element of granting prior preference via sunrise processes,
educated
by ICANN to coddle SIG such as IP lobby interests where ICANN might
gain further financial support.  Such actions without legal review by
any
interested parties opposed to such sunrise provisions is detrimental to
world economic as well as domestic trade inter or intra state.  And for
these very important reasons I agreed also with Karl's earlier remarks
as to ICANN becoming increasingly legally entangled at the expense
of it's own mismanagement and errant attitude towards small business,
ect., ect. which represents more than half of the GNP in the US and
even greater in many other countries with rapidly growing economies.

As such, ICANN's granting of prior restraint through skewed mechanisms
a mal formed and conceived GNSO constituency model, and no real
At-Large representation, is dangerous to the future of many countries
economies and most especially my countries economy

Lets again face the facts or reality, Domain Names should never
have been trademarkable in any name space.

Hugh Dierker wrote:

>    Well written here Richard,
>
>   I happen to have a monopoly on facts, law and the truth! And from
> that omnipotent place of all power I concur with you.
>   IP interests already have the deck stacked in their favor. New TLDs
> should not give them a prior restraint law that weakens free speech
> rights.
>
>   e
>
> Richard Henderson <richardhenderson@xxxxxxxxxxxx> wrote:
>   Hi Chris,
>
> It may well be you are right (I don't have a monopoly on facts, on the
> law,
> or on the truth!). I just don't know.
>
> But I am not convinced that ICANN is *obliged* to run Sunrise
> procedures to
> pander to the IP community every time a New TLD is launched.
>
> If ICANN wishes to assert that .reg or .tm is the place where
> Trademark
> holders may claim automatic rights (based on authenticated Trademarks)
> then
> it can do so. 'Sunrise' mechanisms are surely not inevitable,
> obligatory, or
> indeed required.
>
> Meanwhile, my understanding of WIPO precedents and decisions is that
> challenges by Trademark holders etc only succeed where the registrant
> of a
> name has been shown to have registered that name "not in good faith":
> in
> other words either (a) to defame a Trademark holder (b) to 'pass off'
> as the
> trademark holder (c) to try to sell the Trademark holders 'name' as a
> form
> of blatant speculation (d) to use the famous name to lead people to
> links to
> other websites etc.
>
> I had a specific experience when I registered a .com website a few
> years
> ago. Here in the UK we have an extreme right-wing political party
> called the
> British National Party, which basically wants Britain to be kept for
> 'whites' and would be glad if other ethnic groups could be induced to
> be
> repatriated (at least that is the historic leaning of their
> organisation).
> Many people here in the UK feel that it is a racially-motivated
> organisation. So when I saw that britishnationalparty.com was
> available for
> registration, I decided to register it and run an infoemation site on
> the
> party and its policies. It ran for several years, was informative, had
> a
> lively forum, and I made sure it was not defamatory, did not link to
> other
> websites I owned, and was not for sale. In other words I was using it
> in
> good faith, as an information site, and using my right of free speech.
>
> The leaders of this political party put pressure on me to hand over
> "their
> name" to them. They phoned me. They mailed me. They threatened to take
> me to
> court. I took advice. The key issue was whether I was using the domain
> name
> in "good faith". If a person is using a domain name in good faith,
> then they
> should be allowed to within ICANN's policies. It should then be left
> to the
> "Trademark holder" to take legal action if they think they have
> grounds to.
> Significantly, the British National Party backed off. I do not believe
> WIPO
> could have shown that I was acting in 'bad faith' because I wasn't.
>
> Similarly, as an English speaker (or even if I wasn't) why the heck
> shouldn't I have the right to run a www.apple.zzzzz if I want to,
> exercising
> my right to use a generic word from my own language. I strongly object
> to
> companies hijacking *MY* language and reserving *MY* own generic words
> for
> their private right and privilege. To me, *that* is acting in bad
> faith
> towards ordinary people and their freedoms!
>
> So if at all possible, I believe that TM 'rights' in the context of
> domain
> names should be *restricted* wherever possible. And in my view they
> would be
> best restricted within a .reg or .tm enclosure. Say .computers comes
> up and
> Apple wants to identify this name as about them. If they get their
> first and
> obtain the name, then fine. If not, then they can prove that another
> registrant is using it in bad faith. But if that person is just using
> it
> fairly (maybe a website about all the different types of eating apples
> that
> are listed on the internet or how the apple industry should be
> computerised)
> then Apple Computers should not worry. They still have the official
> 'Trademark' identifier at .reg. or .tm.
>
> I am not convinced that there is, as yet, international (or
> national-level)
> agreement that Domain Names are Trademarks. Indeed, I believe that
> ICANN and
> others involved in Net policy, Net governance, and Net co-operation
> should
> do everything in their power to create a recognition and understanding
> that
> Domain Names are *not* Trademarks at all, but rather they are simply
> number-strings with use as words in language, a language belonging to
> all
> people. ICANN's promotion of a .reg or .tm scheme for limited
> identification
> of trademark status would go a long way towards creating the climate
> of
> understanding that Domain Names are not Trademarks at all.
>
> If someine chooses to abuse someone else's trademark rights through
> deliberate misuse of a domain name, then that is a separate matter and
>
> should be challenged in the courts. In the case of
> BritishNationalParty.com
> I did not misuse the name - indeed I ran a very useful information
> site
> which people of all persuasions used and found helpful. I was acting
> in good
> faith. I was not challenged, and I believe I would have been
> challenged if
> they could have.
>
> It is time that WIPO and other agencies were persuaded to more clearly
>
> define what does and does not constitute 'bad faith'. But ICANN's role
>
> should *not* be to go hand-on-hand with the IP community, but to
> rationally
> provide the IP community with a limited TLD where their legitimacy can
> be
> proved and recognised. The rest of the TLDs and their domains should
> remain,
> like our language itself, free for everyone to use.
>
> Yrs,
>
> Richard H
>
> ----- Original Message -----
> From: "kidsearch"
> To: "Richard Henderson" ; "Joop Teernstra"
> ;
> Cc: "Danny Younger"
> Sent: Tuesday, December 20, 2005 2:05 AM
> Subject: Re: [ga] A TLD for Trademarks
>
>
> > Again, Richard, it doesn't matter that you or ICANN or everyone on
> this
> list
> > says that with a .tm tld companies would only have mark protection
> there.
> >
> > They will simply go to court and protect it in all the other tlds as
> well.
> > Nothing we believe or say will change what will happen.
> >
> > Creating a .tm or .reg will just give them one MORE tld their mark
> is
> > protected in.
> >
> > Not even ICANN or WIPO can change the fact these companies will
> simply sue
> > people for their domain names in all tlds as long as those tlds are
> generic
> > in nature.
> >
> > Until you have specific tlds that exactly relate to categories in
> which
> they
> > can hold a mark in you will always have the problem of reverse
> domain name
> > hijacking.
> >
> > They will always be protected in all generic tlds like .com, .org,
> .net,
> and
> > .biz. Unless you change the court system in many countries all at
> once,
> that
> > is how it is.
> >
> >
> > ----- Original Message -----
> > From: "Richard Henderson"
> > To: "Joop Teernstra" ;
> > Cc: "Danny Younger" ; "kidsearch"
> >
> > Sent: Monday, December 19, 2005 3:59 AM
> > Subject: Re: [ga] A TLD for Trademarks
> >
> >
> > > What I'm really saying, Joop, is that I'm opposed to 'Sunrise'
> privileges
> > at
> > > every launch for people who claim (often spurious) trademark
> rights. In
> > the
> > > case of imachination.com, you clearly think that the identity you
> have
> is
> > > sufficient in itself, but presumably you don't expect the right to
>
> > 'reserve'
> > > the same name in each of the 100's of potential New TLDs? Because
> that
> > > really *would* be expensive and time-consuming for you. Therefore
> in
> your
> > > case, your .com is sufficient.
> > >
> > > However, if you really wanted to safeguard your trademark
> authenticity
> on
> > > the Net under my scheme, all you'd need to do is buy a .reg
> version of
> > your
> > > name (rather than 100's of versions in all future TLDs) and (if
> you
> like)
> > > get the .reg to resolve to the .com site.
> > >
> > > To my mind, having one authentic and authenticated trademark TLD
> is far
> > > better than having people claim the right to "reserve" their name
> in
> tens
> > or
> > > 100's of New TLDs.
> > >
> > > With regard to compliance and enforcement problems, those are
> supposed
> to
> > > exist in existing 'Sunrise' provisions of existing TLDs. I think
> it
> would
> > be
> > > better to have just ONE TLD where the verification procedure was
> carried
> > out
> > > really thoroughly ONCE, than to have these Sunrise processes
> repeated
> over
> > > and over again.
> > >
> > > I don't regard one more domain registration as being as
> financially
> > punitive
> > > as trying to buy your name in lots of New TLDs, although of
> course, you
> > > would retain the right NOT to buy, even in a .reg version. For
> many
> > people,
> > > the 'Trademark' and identity problem is just not big enough to
> worry
> > about.
> > > However, for many people (and the entire IP community, and many of
> the
> > > domain speculator community) these repeated Sunrise/Trademark
> claims are
> > > important. The introduction of .reg or .tm could bring to an end
> > "Trademark
> > > rights" in other TLDs, and also bring to an end the "Sunrise"
> issues for
> > all
> > > New TLDs with all the compliance problems each of these tend to
> bring.
> > >
> > > As for heavy-handed... I don't think a .reg provision would be
> > heavy-handed,
> > > because no-one would be forced to buy a .reg... it would be a
> market
> > choice
> > > (providing your application could be verified). I personally
> believe it
> > > would *lighten* the IP pressure on the rest of the name space.
> > >
> > > Kind regards,
> > >
> > > Richard H
> > >
> > > ----- Original Message -----
> > > From: "Joop Teernstra"
> > > To: ; "Richard Henderson"
> >
> > > Cc: "Danny Younger" ; "kidsearch"
> > >
> > > Sent: Sunday, December 18, 2005 9:58 PM
> > > Subject: Re: [ga] A TLD for Trademarks
> > >
> > >
> > > > At 10:06 p.m. 18/12/2005, Richard Henderson wrote:
> > > > >I personally favour one clearly identifiable TLD for verified
> > trademarks
> > > > >(call it .reg or .tm or whatever) and the whole world knows
> that's
> > where
> > > you
> > > > >go to look for the official sites for recognised and
> established
> > > companies.
> > > >
> > > >
> > > > It's too late for that, Richard.
> > > >
> > > > Small businesses have trademarks too.
> > > > Any kind of forced corralling (whether in .org or .xxx ,.kids or
> .tm)
> is
> > > > going to give more compliance and enforcement problems than it
> is
> worth.
> > > > You would introduce a heavy hand into the DNS.
> > > >
> > > > Do you think I would like my established brand imachination.com
> to be
> > > > herded to a .reg corral and suffer huge rebranding expenses
> simply
> > because
> > > > my registered trademark is suddenly not enough protection any
> more?
> > > >
> > > >
> > > > -joop-
> > > >
> > > >
> > >
> >
>
>

Regards,
--
Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 134k members/stakeholders strong!)
"Obedience of the law is the greatest freedom" -
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