Re: [ga] Re: July 9 ICP Meeting - WIPO and WG-A Preliminary Report

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

Dennis and all,

  You make some very good points Dennis and you should share with
other legal minds along these lines with respect to WIPO and
the WG-A's Preliminary Report.  Therefore I am cc'ing others
and blind cc'ing our [INEGroup] Legal review committee Headed by
Gerry Spence..

  My response comments are inline, (See below)..

d3nnis wrote:

> Jeff --
>
> You hit on two  important  achilles heels  in the the 'abusive registration'   definition of Section 3.

  I thought in brief, I did a little better than that, but thank you anyway.  >;)

>
>
> For a domain name to be abusive, it has to be 'bad faith.'   All but 1 bad faith definition are all linked to
> TM infringement concepts with at least some roots in case law.

  I am not sure that this argument could be made in every case of a
potential "Abusive Registration"  My example, for instance (See below)
outlining that Estherisanazi.com, could easily be viewed as an
"Abusive" domain name registration, but it is not necessarily in
"Bad Faith".  Using that domain name as a descriptor on a perceived
behavior of Esther Dyson, is not, in of itself, Bad Faith.  However this has
nothing to do with a potential confusion concern or TM infringement
concern either.

  In the vain or of the argument of a registration of a domain name as
being Abusive, in that that registration (The act itself) of a Domain Name
(The object) because it is similar and therefore is Abusive or in
Bad Faith, is even more of a slippery slope as well.  ANd example is
the POKEY.ORG situation, for instance...  Another would be
another example that I used some time ago as an offshoot of
Ed Gereks FOrd.com that being, Fordcarports.com or Fordtruckparts.com.
Are either of these sufficiently similar to be confused with Ford.com
or a potential confusion situation with the TM Ford motor company,
Ford Auto Parts, ect, ect???   I think that would be very debatable
indeed, and directly dependent on the CONTENT that either of those
Domain Name sites might contain, before that could be reasonably
determined.

>
>
> The first one though --  an offer or a willingness to sell --  completely slips out of the infringement zone.
> They're creating new law here out of whole cloth -- drawing on what probably were years of bargaining tactics
> used by lawyers to browbeat people by overstating their case.

  I would agree that the "They" in your comment here with respect to creating
new law from whole cloth is likely true.  I don't find that there is the evidence
to show that the "They" that you refer to, have come any where close to
really has or "Bargained" this around enough to justify the creation of
such new law.

>
>
> The second weakness is the 'misleadingly similar' condition.   There is just no basis in statutes for this.
> There is case law on similar names, but that is so specific, I wouldn't dare deduce a rule of law from it.

  Completely agreed here with you Dennis.

> In addition, the Paris Convention does create a legal basis for considering translations of names to be covered
> by infringement, but I haven't seen any case that balances this against the US constitution -- and you can
> probably guess which side I'd bet on. At any rate, this is basically new law too.

  I agree with your conclusion here as well.  However I am not sure that
you premise adequately supports you conclusion or is actually the case.
I hope others can reflect some light here..

>
>
> I really think we should hammer them with the idea that they are 'knowingly' extending the reach of existing
> statutes, and sidestepping conventional sources of international and domestic law.  I don't think these high
> falutin lawyers want these paper trails following them through their future political careers.

 ROFLMAO!  Yes, I believe you are absolutely correct here, unless the
predominant opinion is in the TM and WIPO's favor, than I am sure these
"High Falutin Lawyers", that you mention, will go out of their way to
wear these decisions as a badge of accomplishment...

>
>
> BTW:   I didnt' include any of you other names on this list because I don't know them and don't want to spam
> them.  But feel free to pass this on to them if you think it worthwhile.
>
> BTW #2:  Boston's wonderful.  Hope you're getting a breaking in Texas.
>
> Regards
>
> Dennis
>
> ----------
> > Russ and all,
> >
> >   Hi Russ, interesting and thought provoking post indeed.  I have
> > some concerns that I would like to share, that I am sure others
> > will have with some of your definitions/suggestions, as many have
> > already on several occasions, provided the WIPO, ICANN, and the
> > DNSO.  (See more detail below your comments here Russ)
> >
> > Russ Smith wrote:
> >
> > > I probably will not be able to join the meeting via telephone so I am
> > > submitting comments via e-mail.
> > >
> > > -Definition of "abusive" registration, cybersquatting, and cyberpirate (see
> > > below).  The WIPO report discusses the common usage of these terms but fails
> > > to give full range of popular definitions.  Cybersquatting is sometimes
> > > applied to those holding on to a domain in an effort to sell it for a high
> > > amount of money whether there trademark implications or not.
> >
> >   And WIPO's definition as you state it here is worse than incomplete
> > but it is incorrect and abusive or offensive in and of itself in a market
> > driven
> >
> > economic global economy.
> >
> > >  Cyberpirate,
> > > in addition to the definitions given to the WIPO report, is also applied to
> > > attorneys who attempt to 'reverse hijack' a domain.
> >
> >   And this definition is at least incomplete.  There are other kinds or
> > "Cyberpirates".  Some have been around for some time now and
> > have been hoarding IP addresses or stealing private initiative
> > Protocol development, for instance.  Also many have been stealing
> > or otherwise improperly using Domain Name Registration information.
> > Well you get the idea, the list is nearly endless...
> >
> > > The term "abuse" has
> > > the potential for an even wider range of definitions given it's use on the
> > > Internet relating to junk e-mail and other Internet issues.  The term has
> > > all kinds of connotations in the Internet world.
> >
> >   Agreed.  And one persons abuse is anothers enjoyment...
> >
> > >
> > >
> > > -I also have a question about the definitions.  A common case is a
> > > registrant who registers a generic name a couple years ago, gets a few
> > > offers, and then decides to sell the name (which also happens to be a mark
> > > owned by several companies).  Does this fall within the definition of
> > > "abuse" or "bad faith"?
> >
> >   According to WIPO and it appears the WG-A's Preliminary Report, both
> > is the appropriate answer.  Of course this is both not reasonable but
> > down right ridiculous to boot...  In terms of a registration of a Domain Name,
> > abuse  and bad faith is a very slippery slope indeed.  For a few examples:
> > Would:
> > Estherisanazi.com be abusive or in bad faith or both?
> > My answer:  Abusive, yes, bad faith, not necessarily, both very remote.
> >
> > >  If things like intent when registering, pattern of
> > > practices of the registrant, interest in the name by registrant, definition
> > > of "misleadingly similar," etc. are part of the definition how is it decided
> > > which cases fall into this category?  Who makes the determination and who
> > > gathers the information needed to make the determination?
> >
> >   THese are indeed very good questions, and they are not defined at all
> > distinctly or definitively in either Chapter 3 of the WIPO "Final Report"
> > Recommendations or in the DNSO WG-A's Preliminary Report.
> >
> > >
> > >
> > > Russ Smith
> > > http://consumer.net
> > > http://domainia.org
> > >
> > >   (1) The registration of a domain name shall be considered to be abusive
> > > when all of the following conditions are met:
> > >
> > > (i) the domain name is identical or misleadingly similar to a trade or
> > > service mark in which the complainant has rights; and
> >
> >   How is misleading defined definitively?  If it is not done so, than this
> > requirement needs allot of work and cannot be used as a "Condition".
> > Also how does this jive with "Classes": of Marks?  On it's face, it doesn't.
> >
> > >
> > >
> > > (ii) the holder of the domain name has no rights or legitimate interests in
> > > respect of the domain name; and
> >
> >   No adequate definition of "Rights" here...
> >
> > >
> > >
> > > (iii) the domain name has been registered and is used in bad faith.
> >
> >   Again, the term "Bad Faith" needs clarification...
> >
> > >
> > >
> > > (2) For the purposes of paragraph (1)(iii), the following, in particular,
> > > shall be evidence of the registration and use of a domain name in bad faith:
> > >
> > > (a) an offer to sell, rent or otherwise transfer the domain name to the
> > > owner of the trade or service mark, or to a competitor of the owner of the
> > > trade or service mark, for valuable consideration; or
> >
> >   This is outrageous.  The "Intent" of anyone holding a similar or seemingly
> > similar Domain Name to a Mark holder of that similar note MAY be doing so
> > in good faith....
> >
> > >
> > >
> > > (b) an attempt to attract, for financial gain, Internet users to the domain
>
> > > name holder’s website or other on-line location, by creating confusion with
> > > the trade or service mark of the complainant; or
> > >
> > > (c) the registration of the domain name in order to prevent the owner of the
> > > trade or service mark from reflecting the mark in a corresponding domain
> > > name, provided that a pattern of such conduct has been established on the
> > > part of the domain name holder; or
> >
> >   Very slippery slope here...
> >
> > >
> > >
> > > (d) the registration of the domain name in order to disrupt the business of
> > > a competitor.
> >
> >   Agreed entirely!
> >
> > Regards,
> > --
> > Jeffrey A. Williams
> > Spokesman INEGroup (Over 95k members strong!)
> > 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
> >
> >

Regards,

--
Jeffrey A. Williams
Spokesman INEGroup (Over 95k members strong!)
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