RE: [wg-b] 800 Telephone Scenario

["Roeland M.J. Meyer" <rmeyer@mhsc.com>]

Hello Michael,

I am still catching up to this list, but this note draws my humble
comments. Please understand upfront that my default position is one of
non-exclusion. There are some reasons for this;

1) Lack of definition of what a "famous mark" is. To this date, I don't
believe that anyone has one, recognised by all legal authorities. By
this I mean a legally rigorous definition. As a registry operator, I
want a strict definition before I go denying customer's requests.
Otherwise, I wont do it.

2) It shifts the liability to the registry. Now the registry must do the
research as to what a famous mark is and if the request qualifies.
Regardless of the answer, some requestors will sue. Sorry, I won't go
there either.

3) It is far simpler (KISS) to do FCFS and when a plaintif shows up,
duck and avoid the big pieces (There is a writ that effectively says
"This is between those two fellahs, I'm out of it, inform me, via court
order, who's left standing after the fight"). I won't put a domain on
hold unless a court order shows up either. In fact, the only way I will
alter a customer's account is if they violate my AUP, or I get a court
order, from a court of competent jurisdiction, or the customer requests
the change according to $procedure$. For MHSC this means Delaware, USA,
or a Federal court. Time spent processing the change will be billed to
the requestor. Not paying the bill is a violation of AUP and all
problems will be removed, along with the domain name. Being the complete
mercenary, I don't care who pays the bill either, as long as it's paid
when due.

4) Because of item 3 (above), I don't see much need for mandatory DR or
arbitration either. However, I am willing to be convinced. Bear in mind
that if a trademark holder owns a domain name matching their trademark
then they are in a very strong position to win all challenges, even if
they are a little guy. If it is a chartered TLD, the case is even
stronger (as it should be and needs to be).

5) The only way, that I can see, to stop "cyber-squatting" is for a
registry to demand proof of a registered trademark as part of the
registration process. I am not the only one of the opinion that such a
requirement is excessivly draconian. However, if the alternative is to
staff a large legal research facility then that requirement will
"magically" appear. The reason is that I don't think that I would lose
as much business gross volume as such a facility would cost me in
expenses. Like most business folk, I *hate* legal expenses and I hate
recurring expenses. I place recurring legal expenses somewhere below
cleaning out latrines. My default position here is to ignore
"cyber-squatting" as an issue that can be effected.

--------------------
Roeland M.J. Meyer, CEO
Morgan Hill Software Company, Inc.
http://www.mhsc.com/
mailto://rmeyer@mhsc.com
--------------------

PS. - I am preparing a position paper for WG-C and some of this will be
in it.

> there has been a health discussion but no consensus on any of the
> substantive issues. My job as co-chair is to increase
> participation and
> stimulate discussion, and then report on the consensus of the
> group. Voting
> will being next week and question 0 will be is there a need for an
> exclusionary device at all.  If the consensus to this answer
> is no - then
> this should be a rather simple report. But if the answer is
> yes then they
> are other more complex issues that we must address.