Re: [wg-b] 800 Telephone Scenario

[Milton Mueller <mueller@syr.edu>]

Michael:

I cannot reject it out of hand at this point, but I have great difficulty accepting
the proposal to create a "right of first refusal" in new gTLDs, for the following
reasons.

1. It would be useful to know why the US FCC did not create such a right in the 877
number space, after it did so in the 888 space. Perhaps others can provide more
information here, but my impression was that the whole issue of confusion was not
perceived to be a serious problem, especially with more than two toll-free number
spaces. There is no evidence that the absence of first refusal in the new space has
caused any problems.

2. Implementing a first refusal right implies that no new names can be registered
under a gTLD until we have a list of "famous" names. We can't have such a list
without a defined procedure--which we don't have yet.We would also need to sift
through hundreds, perhaps thousands of applications for famous status. This implies a
delay of several months, perhaps even years, before new gTLDs can come on line. This
is Not Good.

3. Does "first refusal" really add that much protection to a UDRP? Put another way,
is the marginal increment of protection offered by first refusal worth the associated
increase in bureacracy, complexity, delay, and new possibilities of abuse by TM
holders? I don't think it is.

4. The analogy between slow, "controlled" growth in the number space and in the
domain name space is not valid. Economically, there is no comparison between the two.
The telephone number space is highly restricted. There are only a few codes available
that can be used. The domain name space, in contrast, is virtually unlimited.
Technically, there could be thousands of new TLDs, although no one probably wants to
operate that many.

Expansion of the 800 number space has been driven by the fact that we are literally
running out of available numbers; i.e. exhaustion of supply. Expansion of the domain
name space is driven by the desire of users and some suppliers for new and unique
names; i.e. by the differentiated demand.

The radically different supply situation creates a quite different policy problem.


> > 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 :)
> >
> >
> >



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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/