RE: [wg-b] 800 Telephone Scenario

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

I did not ditch the notification process.  I just think the 800 number
analogy is worth "exploring" because it is as to the real world as we get.
Alpha-numeric identification strings, growing demand for new space, former
monopolies, etc. I am trying to get my hands on the documents submitted to
the FCC as to why the 888 exclusion was permitted but the 877 was not. Just
part of the constructive exploring that this group is tasked to do. Although
this analogy is not on all-fours with the DNS model I have yet to find a
closer real world model.

I think the notification process is important and could/should be
incorporated into a final solution, but there are some fatal problems which
I do not believe have been addressed. No registry or related agency is
voluntarily going to undertake the notification process, to either the
trademark owner or domain name registrant, because of various legal and
technical problems associated with it (see NSI's position in the WorldSport
case where the court wanted NSI to install filters). Therefore, domain name
registrants will never be able to receive the neutral type of notification
that was discussed on the list. The only notification will come in the form
of a cease and desist letters that some attorney will write after his/her
client has been notified either through its own efforts or through the
services of a third party that will monitor the root for specific
sub-strings. So in this case we have come full circle and we are back to
square one. The compromise in the idea that I proposed yesterday involved an
affirmative act by a trademark owner to qualify their mark as famous and
then grant them a right a first refusal in the new gTLD space that could be
challenged by a third party.

There are some people that I believe would like to scrap the entire Working
Group B process and let the parties, famous trademark owners and domain name
registrants, fight it out under the new soon to be enacted Uniform Dispute
Policy. But who wins under that solution - no one. I refuse as co-chair to
adopt such a fatalistic viewpoint - unless the consensus of the group
dictates otherwise. Other ccTLDs have enacted safeguards for famous
trademark owners so I fail to see why this group of participants (with
impressive credentials) cannot reach an intelligent well thought out
compromise.

To follow-up on an issue raised by Dennis with regard to the group's focus
on protecting trademarks above religions, etc. I guess the question is
rather simple. On a global basis, reaching a consensus on economic issues is
much easier to do than on religious ones. I believe this fact is evidenced
by the large number of signatories to the various international treaties
regarding intellectual property.

We as a group have the ability to make a positive constructive impact.
Otherwise we collectively will be forced to traverse an uncharted mind field
of clue.com and candyland.com case law.

As always, I welcome any input - positive or negative. Who said building a
consensus was easy :)

Votebot testing is currently underway. Should be operational by Friday.

P.S. Thanks for the civilized nature of the list to date. Let's keep up the
good work.

-----Original Message-----
From:	owner-wg-b@dnso.org [mailto:owner-wg-b@dnso.org] On Behalf Of eileen
kent
Sent:	Tuesday, September 21, 1999 10:17 AM
To:	wg-b@dnso.org
Subject:	Re: [wg-b] 800 Telephone Scenario

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/
>
>
>
>