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:

> I'm not focused at all on "short catchy" names, Michael, UNLESS they are trademarked...

  Well this is good to hear.  I can only suspect or surmise that this would also
include that "Short Catchy" name, AT&T or ATT as well?  >;)

>
>
> maybe that helps?

  Not really.  Nice spin though...  >;)

>
>
> -----Original Message-----
> From: Michael Froomkin - U.Miami School of Law
> [mailto:froomkin@law.miami.edu]
> Sent: Sunday, December 08, 2002 3:52 PM
> To: Cade,Marilyn S - LGA
> Cc: Karl Auerbach; George Kirikos; ga@dnso.org
> Subject: RE: [ga] Stolen domains, transfers, WHOIS, audit trails,
> andsystemintegrity
>
> I note that you are changing the subject rather than responding.  Why is
> that?  Is it because I'm right?  You may know my views on things, but I
> certainly don't know how you can make the first and third sentences of
> the post I responded to both seem accurate at the same time.  I think they
> are contradictory.
>
> But, since you ask about these new things....
>
> On Sat, 7 Dec 2002, 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..
>
> I don't understand the hypo.  If the individual use is non-commercial, the
> indivdual is not an infringer, so there is no issue: their use is legal.
> Those are the interests, oft trampeled on, that I care most about.
>
> If the use is commercial, the use is not infringing unless the name is
> very famous (subject to correction in the pending Victoria's Secret case)
> or the use is in the same line of goods in the relevant
> jurisdiction/terriotry. In neither of those cases am I overyly sympathetic
> to the poor small business person who should have done a trademark search.
> Those are the rules of the game.  I am concerned about claims that many
> marks should be seen as famous enought to command federal dilution
> protection -- that is a trap for the unwary.
>
> >
> > .... 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...
>
> If their use is legal, then other people shouldn't bring frivolous cases;
> if they do they should pay.  I support requiring a bond for UDRP
> complainants to be lost if the case is deemed to be frivolous.
>
> >
> > .... 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.
>
> The implicit suggestion that people should thererfore cede all short
> catchy names (all of which are trademarked for SOMETHING) to the
> commercial sector is to me quite revolting as an attack on our common
> language.
>
> >
> > I know, I know,.... as an academic, you want to and need to also
> > protect all other possible avenues/perspectives, etc.
>
> Let's consider the fate of the English language.  Just about every noun
> and adjective is trademarked for something.  I think I have a right to
> those words too.
>
> >
> > 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.
>
> Again, I'm not sure what you mean.  if you mean that 'average' users
> should be counseled to avoid all the nice catchy names because someone,
> somewhere, has a trademark on it for something, we don't live on the same
> mental, legal or political planet.  But perhaps you meant something else?
>
> >
> > 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...
>
> Nope, that's what you mean.  No thanks.
>
> >
> > Probably depends on the agenda of the registrant, of course.  :0)
> >
>
> Actually, it depends more on the rapacity of the trademark bar.
>
> > I'm not saying that there aren't legitimate conflicts. That is why we
> > supported the UDRP. 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.
>
> The UDRP has enormous built-in problems, including the intellectual
> dishonesty of a *small but vocal* fraction of the arbitrator pool, the
> unwillingness of the providers to accept a balanced panel of arbitrators
> (WIPO, for example, won't have me as an arbitrator), and many many
> procedural flaws discussed at some length in
> http://personal.law.miami.edu/~froomkin/articles/udrp.pdf
>
> >
> >
> >
> > -----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
> +1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
>                         -->It's warm here.<--
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Regards,

--
Jeffrey A. Williams
Spokesman for INEGroup - (Over 127k members/stakeholders strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
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