RE: [wg-b] WG-B Deadline

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

As a general rule, I speak only for myself in an individual capacity unless
otherwise noted.  Although there are times that I will speak for the
registrar constituency as their secretariat when I have been authorized to
do so. To answer your question, I was using "we" in the broad sense.
However, "we" in fact could be translated into "they" and the "they" being
the Names Counsel (10 votes for a majority) and the ICANN Board (10 votes
for a majority).

Now in this wonderful democratic process called, ICANN, I will be the first
to admit that the voice of the individual stake holders are often not
properly heard above the roar of the other commercial interests. However,
you cannot deny that they have a voice. As Chair of this Working Group, I
have denied no one access to participate in this process and have bent over
backwards to increase participation among a large diverse cross section of
the DNSO constituencies.  There was much criticism about the WG-A process
and I tried to make this a model for how an open and transparent process
should work.  Now you can choose to shoot/flame the messenger, in this case
me, or you can look at the facts of the situation and see how best to
proceed.

I know the Non-Commercial Constituency has fought a hard valid fight against
the creation of a Universally Famous Trademark list. I have had this
discussion with Michael Froomkin, Kathy Kleiman, Mikki Barry, Milton Muller
and others and I genuinely share many of your concerns. However, based upon
what I saw in Cairo, the adoption of the guidelines by the WIPO standing
committee last November, and the general global push for enhanced protection
for famous trademark,  I believe it is no longer a question of whether WIPO
will create the list, BUT at who's request, when and with what safeguards in
connection with the domain name system.

Now most of the stories that I have heard most often during the past 12
months since the creation of WG-B are the pony, pokey, veronica, avery, and
clue domain name disputes. Now under the current Registrar proposal, the
famous trademark owners would not be able to exercise the right of first
refusal under the sunrise period in chartered non-commercial top-level
domains. I believe this should go a long way toward protecting the interests
of individual stakeholder who have had to fight for limited virtual real
estate with deep pocketed commercial interests. Therefore, I would argue
that the most prudent course of action would be to make sure that these
exceptions are in place and that the reasonable controlled growth of the
name space includes chartered non-commercial top-level domains during the
test bed period. Now I am sure there will be many people that will disagree
with me as there always is, but I believe this is the reality of the
situation.

Mike Palage
An individual with his own perception of reality.
- not in my capacity as Chair of Working Group B
- not in my capacity as Secretariat of the Registrar Constituency
- not in my capacity as an corporate office of InfoNetworks
- not in my capacity as an attorney

-----Original Message-----
From:	owner-wg-b@dnso.org [mailto:owner-wg-b@dnso.org] On Behalf Of Judith
Oppenheimer
Sent:	Friday, March 24, 2000 9:58 PM
To:	Mikki Barry; mpalage@infonetworks.com
Cc:	wg-b@dnso.org
Subject:	RE: [wg-b] WG-B Deadline

>it will be a solution that we all can live with.

Michael - we all who?  Who exactly to you presume to speak for?

---------------------
Mikki Barry says:

There is very little common ground here I am afraid.  The trademark
lawyers already have pushed through a UDRP, the "anti-cybersquatting
act" and various other laws that already protect them far more than
is warranted.  And no, this is not a solution we all can live with.
This is a solution that registrars and trademark lawyers can live
with.  Non commercial and free speech interests, small businesses,
and individual users will not be able to live with this.
---------------------

Ditto.

Judith

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684-7210


-----Original Message-----
From: owner-wg-b@dnso.org [mailto:owner-wg-b@dnso.org]On Behalf Of Mikki
Barry
Sent: Friday, March 24, 2000 5:15 PM
To: mpalage@infonetworks.com
Cc: wg-b@dnso.org
Subject: RE: [wg-b] WG-B Deadline


At 4:58 PM -0500 3/24/00, Michael D. Palage wrote:
>Valid concerns. Let me offer you the following insight.
>
>The registrars are not too concerned with the size of the list, within
>reason, as long as it is used in connection with a sunrise right of first
>refusal and NOT as part of a filtering mechanism. The registrars do not
want
>to have any say in the creation of the list because of potential liability
>issues. They like the idea of WIPO creating the list because it is an
>inter-governmental agency that cannot be sued. Therefore immunity starts
>with the creation of the list and they are further insulated if ICANN
>mandates it upon registration authorities.  However, the Registrars are
>sensitive to the Non-commercial and free speech concerns and have
>preliminarily backed excluding charter non-commercial top-level domains
from
>this sunrise program.  Therefore their concerns should be addressed. The
>concerns of the small businesses should also be protected if WIPO uses
>discretion in creating the list in a responsible manner, which there is no
>reason to believe that they shouldn't.

I'm sorry, but we've seen that WIPO cannot use discretion.  Their
tortured "logic" in the UDRP proves that they will go where the money
is, on behalf of trademark owners, whose property they are mandated
by charter to protect (specifically leaving out domain name holders
as equal intellectual property interests.  I spoke with them
regarding this multiple times over several years, and still there is
no change).

I also do not feel that registrars adequately protect the rights of
users to free speech, small business, etc.  This is not an
appropriate solution and an inappropriate conflict of interest.

>
>I understand that this insight is less than ideal to several people on this
>list, but at least it is an effort among certain constituencies to put
aside
>past differences and move toward a common ground. I will be the first to
>admit that the final outcome of famous trademarks and new top-level domains
>will be far from satisfactory for most if not all people. In fact, if the
>job is done right no one will be happy, but it will be a solution that we
>all can live with.
>

There is very little common ground here I am afraid.  The trademark
lawyers already have pushed through a UDRP, the "anti-cybersquatting
act" and various other laws that already protect them far more than
is warranted.  And no, this is not a solution we all can live with.
This is a solution that registrars and trademark lawyers can live
with.  Non commercial and free speech interests, small businesses,
and individual users will not be able to live with this.