Re: [wg-b] 800 Telephone Scenario

[eileen kent <eileenk@enteract.com>]

I have to agree with Milton on many points. In particular, the right of
first refusal for a stand alone string seems pretty marginal. It injects
bureaucracy and expense into a process that is essentially a nod to the
i.p. community without much substance.

I thought we were kind of on track here with an automatic notification to
both sides of any incidence of a string within a registration that
replicates a famous name (definition to come). I believe Randy Bush came up
with some palatable language for a machine generated notification. If the
trademark owner has a problem with the registration, he can go immediately
into dispute resolution. 

I commend Michael for continuing to think of creative solutions and for
bringing such disparate (but civil) voices together. And thanks, Michael,
for the vote bot. I think we may need to vote on what we're going to vote
for, though.

eileen

p.s. I got a letter from a company called "enic" offering to sell me
eileenkent.cc. What's up with that?



At 10:33 PM 9/20/99 -0400, Milton Mueller wrote:
>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 :)
>> >
>> >
>> >
>
>
>
>--
>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/
>
>
>
>