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

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

Marilyn and all assembly members,

Cade,Marilyn S - LGA wrote:

> Michael, I know your views, but I've never heard your views on how the rights of the individual might be put at risk when they unknowingly infringe... and therefore can't use a name because they blundered into a territory where someone has rights..
>
> ... the purpose of putting up a site is USUALLY to communicate with the public.
> what advantage is it to the user when they register a name which someone disputes and they are tied up in a UDRP or a court action...
>
> ... MOST users want to move quickly to getting a name, getting a web site, and doing "business/communications"... and getting delayed is a problem to them.
>
> I know, I know,.... as an academic, you want to and need to also protect all other possible avenues/perspectives, etc.

  A little sniping here Merilyn?  But yes Michael not only or just as and academic
but as a Lawyer and a Registrant another registrants, have this same need,
or more aptly put, concern also...

>
>
> but consider the "average" user... wanting to merely get to work, so to speak...
> I've never heard you on that topic... only on the adversarial side of the equation.

  The average user doesn't also want to worry about possible legal action or
UDRP filing either.  But maybe you can describe what the "average user", as
you put it, is??  I doubt that you can.  Hence this seems to be more sniping
rather than an attempt to get at an actual potential problem...

>
>
> It's interesting, but perhaps someone else might speak on the aspect of those who want to avoid conflicts and merely know that they can register a name, use it, and not have to fight over it...

  It is simple.  First come first serve...  Of course the BC and IPC have fought
hard against this long standing practice.  Do you recall First use TM
provisions?  Do you recall that a TM is not equal to a Domain Name?

>
>
> Probably depends on the agenda of the registrant, of course.  :0)

  And the converse depends on the Telecom hyped TM Special interest
lobbyists.  >;)

>
>
> I'm not saying that there aren't legitimate conflicts. That is why we supported the UDRP.

  Nonsense.  The UDRP was supported, and in fact the idea of TM lobbyists
along with other IPC special interests...  That's documented Marilyn.  Please
don't again try to rewrite history...

> It  might not be prefect, but it offered a lower cost solution for the disputed names for individuals and small organizations/entities, not just corporations.

  Low cost?  For whom?  For small business registrants?  No, it was a low cost
way of big business especially the Telecom and IPC lobby way of stealing
legitimate domain names from the rightful, first registered, registrant...

>
>
> -----Original Message-----
> From: Michael Froomkin - U.Miami School of Law
> [mailto:froomkin@law.miami.edu]
> Sent: Friday, December 06, 2002 9:40 PM
> To: Cade,Marilyn S - LGA
> Cc: Karl Auerbach; George Kirikos; ga@dnso.org
> Subject: RE: [ga] Stolen domains, transfers, WHOIS, audit trails,
> andsystemintegrity
>
> 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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>
> --
>                 Please visit http://www.icannwatch.org
> A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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Regards,

--
Jeffrey A. Williams
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E-Mail jwkckid1@ix.netcom.com
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