Re: IP/TM Concerns & New GTLDs (was:Re: [wg-c] Who should vote for new gTLDs)

["Mark C. Langston" <skritch@home.com>]

On 28 July 1999, "Kevin J. Connolly" <CONNOLLK@rspab.com> wrote:


>The problems of new GTLDs go far beyond any dispute resolution policy.
>
>
>Trademark holders are already concerned with the large and growing
>number of places where domain names can be registered.  Their concern
>is magnified by the emergence of ccTLDs whose names make it possible
>for SLDs in those domains to be perceived as more than just
>geographically linked.  In the emergence of TLDs such as .io, .cc,
>.to., and .nu, the trademark community sees a precursor of what could
>happen if the growth of the TLD name space is not curtailed.

I'll acknowledge that TM/IP interests want to protect their exclusive
marks, and that any new market presents the opportunity for someone
to infringe, knowingly or otherwise.

I'll also acknowledge that TMP/IP interests want to maintain their
exclusive use of their marks and IP, while minimizing the cost of
doing so.

What I don't understand is the difference it makes if it's 1 or 100
new TLDs.  They're all in the same root.  They're all more or less
searchable.  And putting a DRP in place that was agreed to by the
TM/IP interests says to me that the TMP/IP interests are satisfied
with the DRP.

The only thing that's left is the trouble and expense the TM/IP
interests must go through to protect their famous marks or other
IP.

The 'trouble' aspect seems, in my opinion, to be a red herring.
It can be made as easy or as difficult as ICANN decides to make
access to the root servers.

That leaves the expense.  To a certain extent I believe that the
expense should be accepted as part of the cost of maintaining 
exclusive use.  If the benefits of exclusive use are outweighed
by the cost of maintaining it, perhaps nonexclusivity should be
considered.

> It is already more expensive to browse the namespace under .com,
>.net and ..org for potential clashes than it is to peruse the
>trademark space for the U nited States, Canada, Mexico, Japan and
>Europe combined.  This much has been known since September 1996, when
>a number of trademark organizations implored CORE's kickoff meeting
>to do something to control the cost of protecting trademarks on the
>Internet.  The ADR system is not a solution to these problems;
>developing a solution will require the development of robus t
>protocols with a coherent (ideally, uniform) interface for perusing
>the regist ered names and a reliable method for ascertaining by whom
>names have been registere d and for what purposes.

Ok, fair enough.  Can we agree that the ADR is supposed to be 
a partial solution to the problem?  If so, let's consider the 
issue you raised:  The difficulty of searching the roots.  This
is another issue entirely, and there should probably be another
WG on it.  

However, I will comment on it briefly:  Any powerful, easy-to-use
root search will almost certainly be abused by those wishing to
make a profit from information contained therein, e.g., contact 
information.  I may not hold a TM, or have any IP to speak of, but
I do have a name, address, and phone number, and I'm sure many people
would be very upset if such a database were thrown wide open, without
constraint.

Additionally, I'm entirely unclear as to how you propose to
ascertain intent from such a database.

>This cannot be done in an environment where the root is opened to as
>many domain names as there are registry operators, each with its own
>protocols, pri vacy policies, and dispute resolution policies and
>procedures.  

I don't think anyone's proposing the growth of namespace without
limit.  However, there are serious proposals to grow it by more than
a handful of TLDs.

> It is certainly bea u geste to propose a domain name
>policy for ICANN against which the international trad emark community
>is certain to fight.  The legitimate concerns of trademark holders h
>ave already delayed and complicated the process to date.  No policy
>for expanding the TLD name space which ignores the interests of the
>trademark community is likely ever to see the light of day.

Which is fine.  What bothers me about all of this is that a policy
which ignores the interests of the rest of the community may see the
light of day. 

If the TM/IP interests are against expansion at all, and wield such 
power, why was the question put to this WG?

>Whatever we recommend to the NC and ICANN, we are wasting our time if
>we do not take steps to preserve legitimate trademark interests.  

We are also pursuing folly if their interests are the only ones
accounted for in our documents.

>As
>indicated, the ADR system is a necessary but not sufficient step to
>doing so.  Another inevitable step is a go slow approach.  Only a few
>TLDs can be added to the root in the first sta ge (even seven is
>probably too high a number; three is more likely to win over th e TM
>community).  

Would the TM/IP community be agreeable to a plan which set an upper
limit by a certain date, with a slow timetable for expansion?
E.g., 2 or 3 new TLDs a month for several years?  One every
two months for 5 years?  Something along those lines?

There's still the burning issue:  which TLDs?

>What's especially important is that ICANN engage the
>internationa l trademark community in meaningful dialogue so as to
>remove the community's fea rs that the propellor beanie set do not
>understand the IP concerns, or do not car e to address them.

Yes, but will ICANN actually do this?

-- 
Mark C. Langston	     			Let your voice be heard:
mark@bitshift.org				     http://www.idno.org
Systems Admin					    http://www.icann.org
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