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Re: [wg-c] Re: IP/TM Concerns & New GTLDs
I've been quite busy lately, and did not have time to respond to the
rest of Milton's points.
On Wed, Jul 28, 1999 at 10:24:24PM -0400, Milton Mueller wrote:
>
> Reality: ICANN does not need political approval or support from any external entity to add
> new gTLDs to the root.
As I noted, ICANN is under the control of NTIA in this matter, and
NTIA retains complete control over the root zone. Consequently,
ICANN very much needs political approval and support from external
entities.
[...]
>Myth 2: We can add a very small number now and perhaps lots more later, and that is a nice
>middle ground that satisfies both advocates of new TLDs and the TM/IP interests.
>
> Reality: It's just as likely that the TM/IP interests will see any
> additional TLDs beyond the small number as a threat, and put up the
> same opposition later.
1) The opposition is not only coming from TM interests. There are
strong operational arguments against immediate creation of a large
number of gTLDs -- adding one new gTLD will clearly not change the
status quo much; adding 100 will change the status quo a lot. Given
that ICANN's number one priority is stability, evolutionary rather
than revolutionary change is obviously preferred. This sentiment is
very widely held; at the same time, however, there is *very* strong
sentiment supporting evolutionary change.
2) TM interests in fact have modulated their stance over time. The
successful operation of a dispute resolution procedure may go a long
way to allay their concerns.
3) Note that this "reality" completely contradicts "reality #1" -- if
ICANN had the total immunity from political pressure claimed in
"reality # 1", then the opposition of the TM interests at a later time
won't make any difference. In fact, both "realities" are nothing of
the sort.
[...]
> Myth 3: The lobbying of the TM for restrictions on the name space
> really does represent true and legitimate concerns about intellectual
> property protection.
>
> Reality: One must carefully distinguish between the public interest
> in protecting investments in IP, and the short-term interests of
> existing IP holders as construed by their IP lawyers. The public
> interest is to protect names from being *used in commerce* in ways
> that deceive or confuse customers. The IP lawyers, on the other
> hand, are arguing that mere registration of a name, regardless of how
> it is used, regardless of whether it confuses or deceives, and
> regardless of whether it is even visible on the Internet, must be
> protected.
Hmmm. The fallacy of "sweeping generalization"...
> That position bears no relationship to the policy
> rationale for IP protection.
Now the fallacy of "strawman"...
> It is simply a way for TM holders to
> shift policing and enforcement costs onto someone else.
TM holders will shift the cost of policing and enforcement to end
consumers and shareholders, regardless. The cost of trademark
policing and enforcement is in general a COST TO SOCIETY, not just a
cost to TM holders. The net effect of an increase in TM litigation
is an increase in society's capital being spent in the legal system
-- a transfer of money from comsumers and shareholders to IP lawyers
and the legal profession.
While there certainly have been substantial cases of "reverse
hijacking" and other abuses, tarring all TM holders with that brush
is completely inappropriate. There are millions of TMs; the "reverse
hijacking" cases get a lot of publicity, and are largely the result of
NSI's policy.
Without exception, the TM attorneys I have personally dealt with in
this matter (and there are a number) have been operating from a
sincere perception of a real problem. It is worth remembering that
if IP lawyers were acting in their pure self interest, they should favor
the addition of *hundreds* of gTLDs...the increase in litigation would
keep them well-paid and busy for years.
--
Kent Crispin "Do good, and you'll be
kent@songbird.com lonesome." -- Mark Twain