RE: [ga] Stolen domains, transfers, WHOIS, audit trails, andsystemintegrity

["Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>]

Your first and third sentences below contradict each other.  I believe the
first is correct and the third is not: ICANN does not "rely on existing
trademark law".  Instead, it gives TM holders considerable extra-legal
protection -- more than the law requires, e.g. in the 'landrush' rules.  

In adopting plans "developed outside of ICANN" ICANN consciously
discriminates against everyone without a trademark for the benefit of
those who lobbied for those advantages. There is a good case to be made
that this lobbying of a private corporation (ICANN) by private firms to,
in effect, rig the market is an anti-trust violation, and that the firms
who lobbied ICANN for it are guilty of a combination in restraint of
trade.

Firms who employ persons engaged in such lobbying may wish to consult
counsel, and may wish to reconsider the wisdom of using ICANN to secure
market advantages. Cf.
http://personal.law.miami.edu/~froomkin/articles/icann-antitrust.pdf

A revised version of the article will be published in the Illinois Law
Review early in 2003.

On Fri, 6 Dec 2002, Cade,Marilyn S - LGA wrote:

> Karl, In this post, you are misinterpreting ICANN's ADOPTION of
> trademark protection developed OUTSIDE of ICANN, WITH ICANN DEVELOPING
> NEW IP LAWS. I am not a lawyer, but I was there through all of this
> debate, and played a rather visible and central role in developing the
> concept. ICANN relies on existing trademark law.
> 
> I am disappointed in this attribution. It's "interesting" but
> flawed... and not like you.
> 
> Marilyn
> 
> -----Original Message-----
> From: Karl Auerbach [mailto:karl@CaveBear.com]
> Sent: Friday, December 06, 2002 4:03 PM
> To: George Kirikos
> Cc: ga@dnso.org
> Subject: Re: [ga] Stolen domains, transfers, WHOIS, audit trails, and
> systemintegrity
> 
> 
> On Fri, 6 Dec 2002, George Kirikos wrote:
> 
> > The domain industry needs to have some stronger and explicit ICANN
> > policies (and not just "registry policies that do not disagree with
> > ICANN policies")...
> ...
> > It shouldn't have to be "caveat emptor", etc....we need stronger
> > protections, like real estate.
> 
> ICANN is not a legislature, neither is it a sheriff nor is it a judge and
> jury.
> 
> The efforts of the trademark industry to turn ICANN into all of those have 
> resulted in many of ICANN's problems.
> 
> We should be shrinking ICANN's role, rather than increasing it.
> 
> If you look for the protection of rights and if you feel that you have an 
> unequal bargaining power to enter into contracts that protect your 
> interests, then the place to go is a legislature, not ICANN.
> 
> 		--karl--
> 
> 
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