[registrars] GIGO in IP

["Robert F. Connelly" <rconnell@psi-japan.com>]

Dear Michael:

As with so many things, if you start out with the wrong premise, you can 
quickly reach your destination -- the wrong conclusion -- GIGO.

Here are your legal points from your draft "Registrar Position Paper".

Statement of Legal Points of Law:

* Traditionally, national trademark laws exist to protect a mark in
connection with specific goods and/or services within the sovereign
territory of that nation.
* Recent expansion of certain national trademark laws has extended
protection to marks in connection with unrelated goods and services, i.e.
dilution, within the sovereign territory of that nation.
* The aforementioned forms of protection are derived in part from the Paris
Convention and the TRIPS agreement.
* The protection afforded under these collective treaties although broad, is
NOT absolute.
* Not every United Nation member is a signatory to the Paris Convention and
even fewer member states are signatories to the TRIPS agreement.
* Nothing in these treaties, either individually or collectively extend
protection to a mark in a country where it is NOT famous.
* Certain countries, specifically those in the Asian Pacific region, have
national laws that explicitly do not recognize dilution.

You start out with the premise that trademarks (service marks) are meant to 
protect the trademark owner.  You and I know that the fundamental reason 
for protecting trademarks is to protect_the_consumer!

If we wrap matters such as the UDRP and sunrise proposal in the cloak of 
consumer protection, we should have much less difficulty with the freedom 
of speech and civil libertarian "branch of the Internet family".

I was wondering last night after our teleconference why we keep forgetting 
the consumers.  I think I know why.  The only persons paid to protect the 
consumers' interests are a few bureaucrats, courts, employees of NGOs, 
consumer advocates and the like.

Those who earn their daily bread protecting trademarks are trademark 
applicants and owners -- and those who represent plaintiffs and defendants 
in trademark litigation.  IP attorneys are paid (often handsomely) 
by_their_clients.  I don't personally know any who are paid to protect 
consumer interests.

Thus, I think your list of legal points starts from the wrong premise.  I 
think you need to add one or two items at the top.  I don't know just how 
it should be worded, but I'll take a crack at a first cut:

Statement of Legal Points of Law:

* Fundamentally, trademark laws are created to protect consumers from being 
mislead and/or defrauded by those who would create confusion as to the 
source of goods (or services).

* Trademark litigation stresses the ways in which trademarks, trade dress, 
etc. can (and has) mislead consumers.

* Traditionally, *national* trademark laws exist to protect consumers by 
granting a kind of "monopoly" over the use of a mark in connection with 
specific goods and/or services within the sovereign territory of that nation.

I guess you can go from their with your excellent summary of how we got 
where we are today with domain names.

Additional comments:

Ninety (90) days prior to any new gTLD being added to the root, the new
registry authority will begin accepting applications [and discounted
registration fees] from trademark owners whose marks appear on the WIPO list
through participating accredited registrars.

Omit part in brackets.  Add following sentence.

Registrars in the new registries will not be bound to any fee 
schedule.  They shall be free to offer their services at prices that fit 
their business models, down to and even below their costs.  Free market 
practices will prevail.

end quote:

Now another quote:

Not every registrar is required to participate in this sunrise period. Some
registrars may elect to participate in the registartion [sic: 
"registration"] process only after
sunsrise period has passed. [The exact amount of the discounted fee for the
domain names registered during this sunrise period is yet to be calculated.
However, it should be commensurate with the registration authorities' fixed
costs. Such a cost-based fee solution should therefore remove any perception
of this being a "forced sale."]

Cut all the section in brackets.

Basically, I think we're on the right track.  Unfortunately, IP specialists 
tend to lose sight of the forest while defending the trees.  WG-B has 
focused too much upon the rights of the trademark holders, not the consumers.

Regards, BobC

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
A word to the wise:   If someone sends you an Email with a large
number of addresses in the "CC:" field, those names can very easily
get into the hands of bulk Email merchants.   Unsolicited bulk Email
is known as "spamming".  Recently, I received a spam message
offering us software which would take all our Email and extract
the various addresses from it so it would be used in sending
spam messages.  The vendor would even purchase the output
from his software to further enhance his spamming business.

It is therefore considered very bad practice to put large lists
in the CC: field.  They should be put in the "BCC:" field.  "BCC"
stands for "blind courtesy copy".  (If you're old enough to remember
the typewriter, in those far distant days it meant "blind carbon copy".)
I often send Email to myself as the vehicle for sending to a list which
is in the BCC: field.

By the way (BTW in Internet jargon), spamming is against the
rules of the Internet.  Legitimate Internet Service Providers (ISPs)
will cut off the service of their clients if they continue to send
spams after a reasonable warning.

Bob Connelly