Re: [wg-b] RE: opportunity to pre-empt, or license to infringe?

["Mark C. Langston" <mark@bitshift.org>]

On Thu, Apr 20, 2000 at 05:19:17PM -0400, Cade,Marilyn S - LGA wrote:
> I agree with Steve's comments.  If someone is speculating in the trademarks
> of others, versus speculating in names not yet registered, or trademarked,
> the trademark holder has no choice but to protect their brand.  We can't
> merely sit by and allow infringements to occur.  Mechanisms which can
> prevent litigation should be viewed positively, since the need to engage in
> litigation will only delay e-commerce, add in unnecessary costs, and
> benefits no one. 


"Delay e-commerce":          Keep businesses from making more money.
"add in unnecessary costs":  Force businesses to absorb the cost of mark
                             policing.
"benefits no one":           Does not benefit businesses.

Further, these sweeping, context-free, a priori exclusions place a 
significant restraint on trade, speech, and namespace usability.

As an individual, as an end-user, and as a stakeholder, I don't see
this as detrimental to the proper functioning of the net.  Nor do I
see it as detrimental to myself or others like me.  The only potential
"harm" I see here is that mark holders must continue to pay the cost
of mark policing, as law requires.

Preventing this kind of exclusion doesn't increase consumer confusion,
either.  Consumers seem to be more than able to find the websites
via which they'd like to spend money.

I see no reason to further restrict namespace with these kinds of
policies.  ICANN is not supposed to be a policy body.  Namespace
is not just for commercial interests, and it's not just for web pages.
There is no reason whatsoever to enact policy that will govern namespace
in this manner, when the impetus behind the policy assumes that the
"Web" is the only thing for which namespace is used.

Ten years ago, many of you would never have predicted the Web would
even exist as it does today.  Yet you're ready to place permanent
restrictions on namespace today, using faulty assumptions (those
assumptions are already evident in the UDRP arbitration).

Ten years from now, the "Web" will most likely resemble nothing in
service today.  And DNS will similarly be put to myriad uses that
aren't yet imagined.  Yet you presume to reserve large chunks of
namespace for yourselves, in effect saying, "The principle of
first-come, first-served is an abomination that should not be.  Unless,
of course, it only applies to mark holders."

Reducing the number of potential name registrants from billions 
to hundreds of thousands (if not millions) doesn't solve any 
problem in namespace.  It simply reduces mark holders' competition
during the registration process.

I view this as nothing more than a land/power grab, and I will 
continue in my opposition.  As I stated in my position paper, the
ONLY circumstances under which I would entertain any such 
exclusionary tactics are the following:

Create, under the existing ccTLDs, SLDs that match the 30+ 
categories of goods and services currently in use to bound mark
applicants.

In one swell foop, you've got categorical and geographical limits
on infringing domain names, just as you do with marks in every other
venue.  

In these domains and these alone, feel free to enact whatever
policies you think give you competitive advantage in that portion
of namespace.   But stay in your own sandbox.  Those policies end
at the right-hand dot of the goods and services categories.  The
ccTLDs and all other TLDs shall never be subject to your exclusions.

This eliminates the possibility of squatting (at least as much as
the sunrise policy itself does, if not moreso), it eliminates
consumer confusion (consumers can trust that the kodak.camera.us
[or whatever] is, in fact, the Kodak film/camera company), it
greatly reduces litigation (you mark holders wouldn't sue _each other_
over domains in your own sandbox, after all.  That kind of
infringement only happens out here, with all the scum and rabble
and non-Constituency-represented folk), and it greatly reduces your
policing cost, since the bounding of the domains by geography and
category make plain the boundaries of infringement.


-- 
Mark C. Langston
mark@bitshift.org
Systems & Network Admin
San Jose, CA