Re: [wg-c] FYI South-North Development Monitor (SUNS) #4545

[Kent Crispin <kent@songbird.com>]

On Thu, Nov 11, 1999 at 02:54:25PM -0000, Keith Gymer wrote:
[...]

> Or is Eric suggesting in a roundabout way that the DNS should perhaps have
> rules to take away www.redskins.com (for example) from its present owners in
> light of the recent US decision to strike the corresponding trade mark
> registration?

Keith -- 

There seems to be a great deal of confusion about Eric's proposal.  I
believe it is not at all as threatening as you fear, and in fact I
think it is very much in line with suggestions you have made in the
past, and *highly* compatible with TM interests in general.  In fact,
in my opinion you are natural allies, and should work together. 

Eric couches his discussion in terms of the history and legalities of
indigenous peoples, a perspective for which I personally have a great
deal of sympathy, though little knowledge.  But unfortunately, a
discussion from that point of view may obscure the actual practical
significance of what he is proposing.  Let me try to explain the 
practical dimensions of his proposal, and why I think it is such a 
good idea:

Concretely, the proposal is that there would be a new TLD, .NAA.  
This TLD would be structured as many of the ccTLDs are, so there 
would be .com.naa, .org.naa, .net.naa, and so on. [The exact details 
of this structure are not important.]

Modulo the structure, this TLD would operate in many cases as a
generic TLD -- so, for example, we might find kodak.com.naa, or
pepsi.com.naa, or ibm.com.naa, and these names would be registered to
Kodak, PepsiCo, and IBM, respectively.  These are well-known company
names; the UDRP would apply to them, and any famous marks exclusion
would apply to them, just as in any proposed gTLD.  

In fact, for the most part all the same rules would apply to .naa as
would apply to any gTLD, with one important exception: if the name
has significance in North American Aboriginal culture, then the
domain would be reserved for use by appropriate parties.  

For example: crazyhorse.com is registered to

    Crazy Horse Saloon (CRAZYHORSE-DOM)
       1474 St. Clair Ave.
       Cleveland, OH 44114
       USA

It isn't clear whether Crazy Horse Saloon has any formal connection
with Crazy Horse, the great Lakota chief, but it doesn't seem likely. 
More likely, the saloon is just trading off the name.

However, we could be sure that crazyhorse.com.naa *would* have a
connection to an entity with a legitimate relationship with
the famous name "Crazy Horse". 

So, in simple terms, the plan is to create a region of the namespace
where names related to Indians are tied to businesses, organizations,
or other entities that are related to Indians.

This is *exactly* consistent with the purpose of trademarks:
minimizing customer confusion.  A name registered in .naa has
disambiguating information that a name registered in, say, .web,
simply won't have.  Moreover, for obvious social and economic 
reasons, registrants in .naa would tend to self-select, further 
partitioning the name space.

Note that the existence of crazyhorse.com.naa would not have a
negative effect on crazyhorse.com -- this is not exerting any control
over names registered in other TLDs.  Nor would .naa be a safe haven
for domain name pirates of any stripe -- under most cases the UDRP
would apply completely.  Nor is .naa going to be a monopoly
powerhouse -- the proposal calls for it to be run on a non-profit
shared registry basis. 

The only possible conflict would be if there was a famous mark that
also had significance in the context of native american culture. 
Personally, I can't believe this is a serious concern -- I believe
that the number of such conflicts is very tiny, and further, the 
character of the .naa would be such that the likelihood of confusion 
would be small.  For that tiny number of cases something could be 
negotiated, or simply left to the courts -- no contract between 
ICANN and a "sponsor" for a TLD can possibly circumvent national 
law.

You, and others, have made suggestions in the past for adding
structure to the TLD space that allows meaningful differentiation
between different categories of goods and services.  The .naa TLD
obviously doesn't correspond to one of the categories you had in mind
-- but it definitely has some of the characteristics you were after,
and doesn't cause any discernible harm to TM holders.

That's the outline and the motivation for the proposal.  There are a
number of important details that have to be worked out, of course,
but fundamentally I think it is quite doable, and also, that it is
far more in tune with your thinking than may have been apparent.  I 
urge you to examine it carefully.

Kent

-- 
Kent Crispin                               "Do good, and you'll be
kent@songbird.com                           lonesome." -- Mark Twain