RE: [wg-b] Second Circuit on First Amendment Analysis of Domain Names

["Hartman, Steve" <HartmanS@Nabisco.com>]

I don't see why ICANN cannot define a "famous mark" for the sole purpose of
an exclusion from the domain space. For example, a famous mark could be
defined for this limited purpose as one that has been registered in at least
50 countries for at least 5 years and has had worldwide sales of at least US
1 billion dollars for each of 5 of the last 10 years. While I don't suggest
that the 5-year/10-year period and US$1 billion are the right numbers, or
that additional or alternative criteria are more appropriate, a domain name
exclusion based on such a definition of a "famous mark" strikes me as
reasonable and workable.

Steve Hartman

> -----Original Message-----
> From:	Roeland M.J. Meyer [SMTP:rmeyer@mhsc.com]
> Sent:	Thursday, February 03, 2000 12:21 PM
> To:	Hartman, Steve; wg-b@dnso.org
> Cc:	'Martin B. Schwimmer'
> Subject:	RE: [wg-b] Second Circuit on First Amendment Analysis of
> Domain Names
> 
> That pretty much says it. I might add that 1b, not having a clear
> definition, is pretty much a show-stopper, IMHO. Many of the ills
> associated
> with the enforcement of marks, famous of otherwise, fall from this lack of
> unifying definition. The world, at large, can not even agree as to what a
> Famous Mark is. This is to the point that I would ALMOST state that there
> is
> no such critter. However, even I know better than that. But, the world's
> legal community doesn't seem to agree and therein lays the problem.
> 
> What is absolutely clear is that only the soverign nations, via
> legislative
> action, can define this  very short list and thus resolve the impass. Were
> they, collectively, to pump out a list of famous, gobally protected marks,
> I
> would back an exclusionary policy, based on such a list, today. Such a
> list
> must be valid in EVERY jurisdiction in which MHSC operates. Any other
> course
> of action opens the registry operator to excessive liabilities and legal
> vulnerability.
> 
> My point and advisory to the WIPO crowd is that previous efforts have been
> much too broad and general, to the point of impacting free-speech. Get a
> little less greedy (more specific) and you might get something through the
> various policy critters. Also, be a LOT more upfront with what you want to
> accomplish and quit relying on PAC bushwacking tactics.
> 
> > From: owner-wg-b@dnso.org [mailto:owner-wg-b@dnso.org]On Behalf Of
> > Hartman, Steve
> > Sent: Thursday, February 03, 2000 6:44 AM
> >
> > On the issue of a blanket exclusion of [famous mark].[tld]s, wg-b
> appears
> > split along the following lines:
> >
> > 1. Those opposed to such an exclusion believe that it (a) raises an
> > appreciable first amendment problem, and/or (b) is unworkable because
> the
> > concept of "famous mark" is not well-defined.
> >
> > 2. Those in favor of such an exclusion believe that there are no
> > free speech
> > or definitional problems, or at least that such problems are
> > manageable and
> > are far outweighed by the benefits of a famous mark exclusionary rule.
> >
> > Is this a fair summary?