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

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

The problem is, if it is definitive when it gets to the arena of the
courtroom.
Rules that are unenforcible ... do not exist.

> -----Original Message-----
> From: Hartman, Steve [mailto:HartmanS@nabisco.com]
> Sent: Friday, February 11, 2000 11:51 AM
> To: 'Roeland M.J. Meyer'; wg-b@dnso.org
> Cc: 'Martin B. Schwimmer'
> Subject: RE: [wg-b] Second Circuit on First Amendment Analysis of Domain
> Names
>
>
> 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?
>