RE: [wg-b] WG-B Deadline

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

This whole thing misses one serious point; WIPO is not universally
authritative in all jurisdictions. It doesn't matter if WIPO creates the
list if following the list makes the registry vulnerable to liability
actions. In such an event, the registry will NOT follow the list. You are
correct, liability immunity is a key part of the success of such a list.
Without such immunity, a famous marks list would be as noticable/effective
as a fart in a hurricane. No amount of mediation will change this.

As to your second level of immunity, the ICANN; I'm not quite sure that they
should accept such a role and my suspicions are that they wouldn't. ICANN
doesn't have the funds to defend itself against multiple suits either. Such
legal defense capability was a major concern with IAHC as well. I don't see
it changing here.

WRT, WIPO discretion, their track-record says otherwise. They have none
[discretion]. They also have a long history of negotiating in bad-faith but
that doesn't seem to bother anyone here either (evidence links can be
provided).

A fallacy in this insight is, this only works in the context that ICANN is
the only Registry of Registries.

ICANN can dictate terms all it wants, with ICANN accredited
registries/registrars, but those not in that universe are still not bound.


> Michael D. Palage
> Sent: Friday, March 24, 2000 1:58 PM

> 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 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.
>
> Best regards,
>
> Michael D. Palage
>
> -----Original Message-----
> From:	owner-wg-b@dnso.org [mailto:owner-wg-b@dnso.org] On
> Behalf Of Mikki
> Barry
> Sent:	Friday, March 24, 2000 4:20 PM
> To:	mpalage@infonetworks.com; wg-b@dnso.org
> Subject:	Re: [wg-b] WG-B Deadline
>
>
> My concerns are the same as always.  There is no place for an
> unfettered, unlimited list of "famous marks" to be used for
> exclusionary purposes across all gTLDs.  The current proposals have
> no upper limit, are being chosen by those with severe bias, and there
> is no mechanism for protecting free speech interests.
>
>