Re: [wg-b] Preliminary Questions

[Milton Mueller <mueller@syr.edu>]

A good set of discussion questions to begin with, Michael.

Here are a few thoughts. My comments focus on the economics
of the exclusion concept--a perspective that is badly needed
but often ignored in these discussions.

Michael D. Palage wrote:

> Question #1:
> Should any exclusion be granted indefinitely, or should it have finite terms
> with renewal fees/procedures?

Of course it should have finite terms and of course there should be
fees--fairlyhigh ones, capable of recovering the full cost of implementing the
exclusions and reflecting in some way the opportunity cost imposed
upon other domain name holders.

Indeed, the WIPO report itself advocated as "best practice"
the following: "that domain name registrations be for a limited period and
subject to
the payment of a re-registration fee, and that failure to pay the
re-registration fee within the time specified in a second notice or reminder
should result in the cancellation of the registration."

What's good for the goose is good for the gander.

An exclusion is just a variety of domain name registration.
It reserves a string across all TLDs, albeit without "using" it.
The DNS doesn't really care whether or how a string is used.
It just cares whether it's available as a unique string for a new
address.

> Question #2:
>
> Should the cost in challenging an exclusion be borne solely by the
> challenging party?

This question could be mooted by my previous suggestion thatthe fees for an
exclusion be fairly high. If applicants pay something
close to the true opportunity cost of getting an exclusion, then
there is no basis for challenging them, any more than their
domain names could be challenged if they had individually
registered all the excluded names in all TLDs.

Indeed, one could even allow exemptions to occur by means
of side payments to the holder of an exclusion. In other words,
you're a Greek restaurant named Nike and
you want to get Nike to allow you to register <nike.food>
Nike says, "fine, we'll sublet you the name for $50 a year."

A high fee for exclusion also has the beneficial property of
imposing a natural limit on overuse of the concept.

If the exclusion fee is low, or if there is no significant,
recurring fee, then the requirement that the cost of a challenge
be borne by the challenger is tantamount to the elimination
of the possibility of any challenge.

Look at the simple economics here. Domain name
registrations are cheap, and if ICANN does its
job properly, there will be many new TLDs.

For most registrants who are likely to bump up against the
exclusions, the cost of entering a challenge will not compare favorably to
the cost of seeking out an alternative form of  registration
that may be less desirable but acceptable.

E.g. the Cadillac Junior High School in Cadillac Michigan wants a
domain name with Cadillac in it, are they going to register
<cadillac-jhs.newtld>, <cjhs.newtld> or are they going to hire a
lawyer, convene a WIPO or ICANN proceeding, and pay $X0,000
to try to get <cadillac.newtld>, perhaps unsuccessfully?

(I hope no one is seriously advocating that an exclusion policy
would also apply to "dash-level domains" or to any domain
that contains the string. That's just beyond the pale.)

The only case I can think of when challenges might be
feasible is when a developing-country business becomes
"famous and well known" in its region and bumps up against
an exclusion obtained by a western multinational,
granted before the developing country business became famous.

In that case, ICANN may need to rethink eligibility for the
exclusion. Again, who should pay the cost for the challenge may
be less important than making it possible for the contestants to
enter into bargains among themselves.


> Question #3
> Does the use of the term "string" instead of domain name suggest that
> registration authorities will be required to install logical filters instead
> of just employing a black list of prohibited domain names.

Very important question. I simply cannot conceive that anyonewould seriously
advocate that an exclusion be applied to all
appearances of a string in anywhere in a domain name.
That would be a monstrous distortion of trademark principles.

> Question #4
> Should WIPO serve as the centralized administrative authority to handle the
> exclusion of famous and well-known marks from the root?

I agree that ICANN is a more suitable home for the exclusionprocess, because
there would have to be tight integration between
DNS administration, registrars, registries, and the exclusion process
to make the exclusions effective.

This approach flows logically from my view of exclusions
as nothing more than a class domain name registration
for which a high price would be charged. ICANN is in the
domain name administration business, WIPO is not.
WIPO's role, at most, is to rule on what names qualify as
"famous."

> Question #5
>
> How does the non-retroactivity provision contained in Paragraph 276 effect
> transfers between third parties?
> Comments:
> Would this exclusion be transferable? Or would this retroactive effect only
> apply only to the original registrant. This needs to be clarified.

Yes, it does need to be clarified. I think as a practical matterthe
grandfathering needs to be perpetual, because too many
companies have non-transferable equity in domain names.

> Question #6
>
> Is the evidentiary presumption contained in Paragraphs 288 through 291
> necessary?

It dangerously undercuts the attempt to limit ADR to "abusive registrations."We
know from prior trademark-domain name litigation that aggressive
TM holders can and do construe any similarity as damaging.

Furthermore, the whole idea that famous mark holders need to be
"protected" from "damage" done by domain names that are close
misspellings, is based on the false assumption that domain names
are a primary tool for navigating the net. They are not, and their
use in this capacity will continue to decline.


> Question #7
>
> Where does the ultimately responsible rest in making sure that an excluded
> domain name is not registered? With the registry or the registrar?

Another good question. Here we need to consult with
people in the industry who are more familiar with the practical
issues.

Michael's comments point toward ways of making an exclusion policy
more reasonable and have much to commend them.
One should not construe my comments upon Michael's statements
to mean that I accept either the necessity or the legality of DNS exclusions.

--
m i l t o n   m u e l l e r // m u e l l e r @ s y r . e d u
syracuse university          http://istweb.syr.edu/~mueller/