[wg-b] ICANN's role in famous names restrictions

[James Love <love@cptech.org>]

At the Cairo meeting of ICANN, I asked the ICANN board how it could
reconcile its rhetoric about the work of ICANN being a technical and not
a policy making group, while it was creating a new global policy on the
use of  "famous" trademarks in domains.   The day before the meeting
ended, the board said that it was not going to do anything with a WIPO
list of famous names, just recommend that WIPO create one.  "It would be
nice to have such a list," said one board member, but "we aren't stupid
enough to want to use such a list."

It was not clear at all from the board discussions in Cairo that there
exists support for having ICANN create a new super status for "famous"
trademarks that would be effectively denied trademarks not on the famous
list.  

It should be clear that the ICANN board does not have competence in this
area, and if there is a need for global action on global trademark
policy, there is no reason to think ICANN should be a global parliament
on this topic.  Let people push WIPO, the WTO or national legislators
for action, not ICANN.  At last in those forums there are people that
claim competence in trademark policy, and there are a basis for
political authority.  

Also, I have heard from a number of small businesses that are quite
concerned about their own trademark rights in a world with new TLDs, and
they of course worry about the costs of defending their trademarks in
the new domain space.  Xmission.com being one example.   However, the
famous name proposal seems to give this new super protection to the
companies best able to afford their own trademarks, and gives big
companies a privilege not available to the smaller fry.  Also, as has
been addressed by many others, where there exist conflicts among
trademark owners in the differentiated space (mcdonalds.flowers,
lotus.autos, etc), ICANN should not rush in with simplistic rules that
give bad results.  The UDRP is in place to address these types of issues
now, and if it is good enough for a small business, why can't Mattel or
other giant firms make do?

At a miniumum, it would seem that a working group B report should
indicate that:

1.  There is no consensus in favor of restrictions on the use of famous
names,

2.  Many members believe it would be inappropriate for ICANN to make
global policy on the use of famous names and domains, and 

3.  There exist many areas of contoversey in terms of the types of
restrictions that would be appropriate, given the wide range of TLDs
that would likely be created over time (from .sucks and .union to
.flowers and .usedcars).  

  Jamie


"Cade,Marilyn S - LGA" wrote:
> 
>  I support John's expression of concern. It isn't ICANN's, or any of its
> working groups, role to be developing such a list.  The proposal that was
> being discussed, as I understood it, was that WIPO undertake such a project,
> based the work of its Standing Committee.
> 

-- 
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James Love, Director           | http://www.cptech.org
Consumer Project on Technology | mailto:love@cptech.org 
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