[wg-b] 800 Telephone Scenario

["Michael D. Palage" <mpalage@infonetworks.com>]

In trying to keep what we do in this working group as close to the real
world as possible consider the following history lesson. When the toll-free
telephone exchange expanded from 800 to 888, the FCC granted existing 800
customers a right of first refusal to secure their same telephone number in
the new 888 exchange. This right of first refusal was not extended to
existing customers when the 877 exchange was recently added. I would like to
thank Marilyn Cade and her colleagues from AT&T for verifying this
information for me.

Using this history lesson as a starting point, could a right of first
refusal for those marks deemed famous coupled with the currently proposed
domain name dispute policy work to protect the interests of  individual
domain name holders, small business owners, and large multinational
corporations? Any proposed right of first refusal would be limited to the
exact famous trademark itself, no sub-strings for the rather long list of
technical and legal issues already reiterated on the list.

Positive - There are no per se exclusions from the root.
Negative - A famous trademark owner would still have the potential ability
to abuse the system by initially securing valuable new domain name space in
the root in gTLDs outside their natural zone of expansion that did not in
fact dilute their famous mark.
Positive - But this would only happen after a showing that a mark is famous
(we will worry about the definition latter).  If doing so protects consumers
from confusion, is this necessarily a bad thing? Plus any third party would
be able to challenge this right of first refusal if they feel that they have
a legitimate or superior claim to the domain name.
Positive - Perhaps the IP community would be willing to waive their right of
first refusal for domain name registrations in purely non-commercial domains
and rely solely on the dispute policy to resolve alleged infringements? If a
pattern of abusive domain name registrations surfaces in these new
non-commercial domains, we could always active the right of first refusal
mechanism.
Positive - This mechanism will allow for the controlled growth of the name
space, similar to the controlled growth of the toll free exchanges, as we
fine tune the rules to meet circumstances which we could not even
contemplate if we tried.

I believe the recent decisions in the clue.com and avery.net decisions that
I posted to the list last week shows that it is in our best interest to
reach a compromise among ourselves. I do not believe that costly litigation
is in anyone's best interest.

I will be the first to admit that this possible solution is NOT perfect, but
I believe it is one of the best solutions to date that would meet the
minimal threshold requirements for all participants. I believe this is as
close to a consensus compromise as possible based upon the rather diverse
viewpoints of the participants. What we as a group must realize is that
until we enact some reasonable/workable safeguards, the likelihood of ANY
new gTLDs being added are doubtful.

The votebot will be operational by the end of the week. I will hold a sample
vote for all participants to become familiar with it.

As always I welcome the groups comments - both positive and negative :)