Re: [ga] ICANN benefits

[Kent Crispin <kent@songbird.com>]

On Sat, Apr 07, 2001 at 06:40:57PM -0400, JandL wrote:
> > ICANN could create a .mark TLD with a trademarks-only charter. Let
> > WIPO administer it or choose and instruct a contractor to do so.
> > 
> > WIPO could create .mark.wipo.org, or anyone could register marks.net
> > or some such name. Once they've done that, they can assign subdomains
> > as they please.
> > 
> > Anyone could create a search engine, or various companies could
> > enhance their existing ones, to use a trademarks database.
[...]
> It has been suggested by many that a TLD for TM holders would 
> work.  However, there still remains the multiple use of a mark vs the 
> unique naming in a TLD.  There would have to be at least as many 
> TLDs as classes of goods and services.
> 
> Another thing that would help is to amend the Lanham Act in the 
> US, absolving TM holders from having to police marks in the domain 
> name system.

It's doubtful that this would help -- the Lanham act isn't the only 
reason that TM holders protect their TMs.  And it is even more doubtful 
that it could ever happen to begin with.

But the bottom line is that I think it is fairly clear that the force
driving TM holders in all this is something quite different than a
simple desire to "police their trademarks". 

> If they are not obligated to do so, there is less need 
> for protection.  In addition, if there were literally hundreds of TLDs 
> it would further reduce the mania for policing.

Highly unlikely.  Note that in fact there already are hundreds of TLDs.

But more interesting: at least one large TM owner claims to have done an
in-depth study of this, and concludes that it will always be the case
that there will be one (or a *very* few) dominant TLDs that will get all
the demand.  NSI clearly believes this; and interestingly enough, the
market projections revealed in the gTLD application process are also
surprisingly pessimistic about the ability of the the new TLDs to gain
market share.

TM owners, like everyone, try to get their names in .com because that is
*the* popular TLD.  This is a self-reinforcing cycle, and there doesn't
seem any obvious end to it.  However, it is irrational, and basically a 
fad.  So it will probably end someday.

Depending on the ethics of the company, the resources it is willing to
devote, the circumstances, the desireability of the name, the timing,
luck, and other things, they may succeed in getting the name they want. 
By and large, large companies have far more resources to throw at the
problem than small entities, and they will win more often.  This is
generally true; it's not restricted to domain names.

So, neither "hundreds of new names" or "special purpose names for TM
owners" or "special search engines" are going to make any significant
difference in what happens in .com -- .com and maybe a very few other
TLDs are always going to be biased towards large companies and TM
owners.

The good news is that it is highly likely that TM owners will for the 
most part ignore small TLDs.

> It is ludicrous to 
> think that a TM holder should have a de facto right to all instances 
> of that mark in all TLDs, whether they are gTLDs or chartered.

That's a ludicrous strawman.  No TM owner I know thinks that, and, in
fact, TM owners have been among the biggest supporters of chartered
TLDs. 

> The legal system is still the only method for potentially fair 
> adjudication of disputes.

Sorry, that's nonsense.  The legal system is heavily biased towards the
rich.

-- 
Kent Crispin                               "Be good, and you will be
kent@songbird.com                           lonesome." -- Mark Twain
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