[wg-c] TM protection and Number of gTLDs must be separate issues

[Milton Mueller <mueller@syr.edu>]

A key issue facing Working Group C has not been stated
explicitly enough.

It is legitimate for the TM/IP interests to search for
procedures that will protect the consumer interest in brand
integrity in cyberspace.

It is NOT legitimate for the TM/IP interests to demand that
entry into a market in a legal service (domain name
registration) be restricted solely to make the job of protecting
their IP easier. Indeed, that constitutes a restraint of trade
that may very well be counter to competition policy. Thus, we
cannot restrict the number of gTLDs or registries solely on the
grounds that it reduces the transaction costs of trademark
holders. We must, instead, search for procedures that address
legitimate infringement concerns as they occur.

Let me offer this challenge to the TM lawyers on the list. There
is an ongoing legal debate about how much trademarks and domain
names intersect, and when and how the use of a domain name
infringes a trademark. Put those cases aside for a moment--they
really pertain more to WGs A and B than here. Let's deal with a
question that is more fundamental to the issue of new gTLDs:

Is there *any* precedent, *anywhere* in which governments or
regulators have drastically limited entry into a market for
LEGAL goods and services, solely for the purpose of making it
easier or cheaper for IP owners to protect their rights?

I am not talking about cases in which proven malfeasers have
been proscribed from certain business activities. I am talking
about a broad, categorical limitation on entry into a market by
anyone.

We know that any market--new or established, technological or
not--is characterized by some levels of illegal activity. Are
there cases, precedents, in which regulators or governments have
attempted to pre-empt those illegal activities by shutting down
on restricting the right to participate in the market? I would
be very surprised if there are, but it is a factual question.

All recent precedents in free countries point the opposite way.

We know that the existence of VCRs and similar recording devices
will in fact result in copyright violations. Ditto (no pun
intended) the existence of photocopying machines. Yet legal
attempts to prevent the manufacture and sale of those devices,
or to restrict entry into those markets to a limited number of
players, have not been upheld in court and would not be upheld,
at least in the USA.

The only precedent I can think of is 17th century England, when
press licensing was combined with copyright regulation. In other
words, you were licensed to print only a few publications as a
kind of government privilege, and copyright was bundled with the
right to print. The elimination of press licensing (coupled with
the creation of a separate copyright law) and the move toward
open entry is considered one of the greatest advances of freedom
of expression in the Anglo-American world.

To summarize:
* There is nothing intrinsically illegal about registering a
domain name, or offering domain names for sale.
* Yet, we are being told by some members of this committee that
entry into this legal market must be deliberately restricted,
perhaps forever, until we measure the economic impact on
trademark holders to determine whether it is "too high" for them
to accept.
* That argument seems to have no legal precedent, no economic
justification, and in fact runs opposite to every major court
decision I know of dealing with the interaction of new
technologies and IP protection.

--
m i l t o n   m u e l l e r // m u e l l e r @ s y r . e d u
syracuse university          http://istweb.syr.edu/~mueller/