[wg-b] Learning To Tune Out Distractions In An Open Room

["Martin B. Schwimmer" <martys@interport.net>]

The Noncommercial Domain Name Holder's Subcommittee on WG-B has put forth a
position paper on the protection of famous marks.  Reasonable people can
differ on the protection of famous marks.  This position paper is not
reasonable.  Through the papers' misrepresentation of the law and use of
strawmen and absurd argumentation, WG-B and ICANN should recognize it for
what it is - an attempt to achieve its goals through disruption and
distraction - veto by heckling.

Begin with the fact that in a work group tasked with critiquing the WIPO
Report's conclusion that an exclusionary mechanism is appropriate, the
NCDNHC does not mention the existence of the WIPO report at all.  The
proposal offers no justification as to why we should substitute the
NCDNHC's judgment for the conclusions of WIPO's year-long examination of
the issue - no overlooked issue, no new data, no superior insight.  The
WIPO report illustrates what the NCDNHC paper was not - open-minded.  WIPO
called for comments and addressed the most serious criticisms of its
conclusions.  You may disagree with its conclusions but it was an open
process and the reasoning is laid out.  Denying the existence of the WIPO
report is not a part of an open process.

Then there is the strawman argument - that a universally accepted
definition of fame is required for the exclusion process to be implemented.
 WIPO didn't think this was necessary - why does the NCDNHC?  Countries
implement their best attempt at defining fame - why can't ICANN do the same
when attempting to implement good business practices?  There is no
universally accepted contract law either - and yet ICANN enters into
contracts.

But rather than work towards an appropriate local definition of fame for
the DNS (as this list has at times attempted to do), the NCDNHC needs the
"universality" strawman to make their "veto by treaty outcast" argument:

	"While famous marks are set out for protection by the Paris
Convention for the Protection of Industrial Property, this treaty has
not been signed or entered into by some countries who use the
Internet" and later "[ICANN should not] impose a new international law . .
.on the countries which are part of the Internet but not a signatory to the
industrial property treaties on famous marks."

There are countries who use the Internet who aren't members of the UN
either.  And there are a lot of countries which use the Internet which not
only don't offer protection for free speech, they outlaw it.  I doubt that
anyone would make a straight-face argument that because of the policies of
these countries, ICANN should not pursue the goals of human rights and
freedom of expression. Is the NCDNHC's concern for sovereignty of off-shore
havens to be taken seriously?

We now turn to the ".fame" TLD proposal.  The paper claims that its goal is
to:

"To address the concerns about famous marks with a new and
uniquely technical solution:   the creation of a space in cyberspace
for marks deemed to be famous."  

This proposal is reminiscent of Stalin's attempt to deal with anti-semitism
by creating a Jewish automonomous region in a remote area of Russia called
B'zer B'jan.  This proposal is as out of touch with reality and likely was
made with as much concern for the subjects.

Responses from the paper's authors to questioning on .fame have been
sketchy but one thing is undisputed.  Simply put, the existence of
xerox.fame has no effect on whether a pirate will register xerox.firm, and
you will dislocate something trying to contort your logic to state that it
will.  Backers of the proposal have conceded that .fame will have no effect
on activity in unrestricted gTLDs.  It is pure disingenuousness to put this
forward as an anti-piracy device.

A NCDNHC NC member now has the temerity to state that there is substantial
support for the .fame proposal and that a new sub-group be formed (thus
diverting even more resources from discussing the WIPO Report).  The
declaration of "substantial support" glosses over the fact that trademark
owners have shown no support for this proposal.  As in the case of B'zer
B'jan, the subjects of the proposal see this for what it is - a sop.

Finally, we turn to the mischaracterization of the law.  It has been said
that patriotism is the last refuge of the scoundrel - on the Internet the
last refuge may well be cloaking oneself in the protection of noncommercial
speech.  THE NCDNHC simply ignores the fact that an exclusion of the type
suggested by WIPO IS lawful.

The NCDNHC paper states that:
 
". . . the famous mark protection extended by the Paris
Convention is a protection for "industrial property," also known as
commercial property,  and does not speak to the delicate balance
between noncommercial and commercial speech on the Internet"

It is the NCDNHC which does not speak to the "delicate" balance.  The
NCDNHC has been presented with the citation of cases which demonstrate the
interplay of trademark law as applied to domain names, specifically U.S.
cases such as the jewsforjesus, plannedparenthood and papalvisit cases,
which cases hold that domain names in the form [mark].[suffix] are
infringing regardless of whether the contents of the web site contained
protectable free speech.  This would suggest that there is no presumption
for example, that the exclusion of xerox.firm would be unconstitutional (in
the US), even if the registrant had intended to disseminate protected free
speech about Xerox on the site.  These cases make the same point over and
over again - the speech is protected, the confusing use of a domain name is
not.

There is no attempt by the NCDNHC to reconcile, distinguish or critique
these cases.  THE NCDNHC simply does not respond to the postings about the
cases and does not even acknowledge that these cases exist in their paper.

We know that the NCDNHC knows these cases exist - one of the authors of the
NCDNHC paper participated in an amicus brief in the jewsforjesus case.

It is intellectually dishonest to state that "the recognition of famous
marks can impinge on freedom of communication" while consistently ignoring
the existence of cases which would uphold protection of the type the WIPO
Report calls for.

In summary, the omission of a mention of the WIPO Report, the hypocritical
"treaty outlaw" argument, the insincere .fame proposal and the consistent
mischaracterization of the law - this is not what honest participation in a
consensus-building process looks like.

Reasonable people can differ on the efficacy of the exclusion process - the
cost of the process, can it be implemented effectively, are there ways of
implementing UDRP which will achieve similar results more easily - all
these issues have at times been discussed on this list.  Maybe the
exclusion is a bad idea.

But to treat the NCDNHC position paper as something other than an attempted
filibuster - belittles the efforts of the people of differing viewpoints
who were working at some type of consensus.  It also belittles ICANN.

The individuals who participated in the WIPO process deserve better, this
list deserves better, and so do non-commercial users of the Internet.




@ @ @ @ @ @ @ @ @