Re: [wg-review] The Number 2 Problem (solution)

[Bret Busby <bret@clearsol.iinet.net.au>]

Chris McElroy wrote:
> 
> My point exactly. And by the way Bret, I have more then 500 domain names. I
> don't wish 500 votes nor special treatment. But if they insist that TM
> Holders, many of which have a lot more than 500 Trademarks, are represented
> by a constituency then it is only fair IDNH have one as well. Eliminate the
> TM Constituency and maybe I'll take another look. But, read this article and
> you'll see how they are attmpting to, no, how they are taking TM Law way
> beyond it's normal limits.
> 
> http://istweb.syr.edu/~mueller/study.html
> 
> Milton Mueller is a Member of this WG and has contributed greatly through
> objectively studying this process. Please read the article.
> 
> Chris McElroy aka NameCritic

<snip>

I have read the above article, and have a few points that need raising
about it.

Firstly, the article refers only to the relationship between domain
names and trade marks. But, what of the relationship between domain
names, and, names, such as registered business names? For example, I am
a partner in a small business, with a registered business name, and, it
has been registered as such, for six years, now. Lets use the name,
purely as an example (it has no relationship to our actual registered
business name), of Teardrop Tissues, as the registered name of our
business. Our business is registered in this state, and, only in this
state. The business name is not a trademark that is registered to us.

Now, a domain name pirate has regsitered the domain name
www.teardroptissues.com, and, is holding it for ransom, the current
price being 5000USD. Because the registered business name is not a
trademark, any dispute regarding the domain name registration, would be
excluded from the study that is mentioned in the article.

That is one point.

The next, is that the minimum dispute resolution fee, is 750USD. Our
registered business, is a very small business, and, given the varying
exchange rates, that would equate to somewhere around 1500AUD, just to
raise a dispute. Given the smallness of the business, and, the
difficulties facing small business in Australia, to raise a dispute,
regarding the domain name registration, is impossible, due to the
prohibitive nature of the resolution process. So, no dispute is raised,
and, such problems, are not raised in an article, such as the one above.

The third point, is that, in the section of the article, entitled
"Policy and Legal Proposals", the writer of the article, proposes that
name registries should be indemnified against legal liability for piracy
of domain names, by their clients.

Now, the domain name www.teardropstissues.com , is registered (from the
whois gateway), to the company named www.we-ransom-domain-names.com (an
arbitrary name, used here, also as an example, with no relationship to
anything, living or dead, ...). The registrar is fully aware, in the
cuircumstances, that the registrar is selling the domain name, to a
domain name pirate, and, that the pirate is obtaining the domain name,
solely for holding it for ransom.

Is the registrar not to be held responsible for its conduct, in being a
knowing accessory to the piracy?

If an arms dealer in the USA, sells nuclear warheads, to the known to
be, psychotic, dictator, of the polically unstable country, of Lunacy,
in the middle of the Pacific, which country, and, dictator, have a sworn
policy of launching a full-scale nuclear war on the USA, and, knowing
that the sale is against the laws banning sale of weapons, or, any
device that may be used in a miltary way, to that country, isn't the
arms dealer to be held responsible for the sale of the nuclear warheads,
to that country?

Similarly, I say that a domain name registrar should be held legally
responsible for its actions, when the registrar knows full well, what it
is doing, is wrong.

Also, in the part relating to "name speculation", as the euphemism that
the writer of the article uses, for the domain name piracy, the article
writer suggested that such businesses should be protected, as they are
legitimate businesses, and, they could be destroyed, by decisions that
protect the rights of their victims. In Australia, we have casinos. The
casinos are said to be quite legitimate. However, some of these casinos,
are said to be involved in, or, run by, organised crime syndicates.
Should the organised crime syndicates be allowed to flourish, on the
basis that law enforcement against them, may harm "legitimate
businesses"?

Another prospect, since the article refers to trademarks, is this issue;
lets say we have been lucky enough to obtain the name
www.teardroptissues.com. Along comes a company, in the USA that has the
registered trademark Teardrop Tissues, registered as a trademark in the
USA. That company is a big corporation, hiring an expensive law firm,
and makes a dispute against us, seeking to take the domain name away
from us. From my knowledge, and, I may completely wrong in this,
trademark registration is limited to the country in which the trademark
is registered. So, who has the right to the domain name? What legal
jurisdiction applies? Whilst a trademark may have precedence, if the
trademark is not registered in my country, should their claim to the
trademark, have precedence over our right to the domain name?

Surely, with domain names, the simplest policy, would be, that the
person who first registers a domain name, and, who has a right to the
domain name (registered business name, at the time of domain name
registration, or family name, or, personal name, or whatever), should
have precedence. And, if the domain name is registered by a party that
is either clearly a domain name pirate, or, a party that cannot prove a
definitive link to the name (eg, if my name is Gustav Fredericksen, and,
I register the name Busby.com, without me having any demonstrable,
genuine, link to the name), then, the first challenge to that party
having the domain name, by a party that can demonstrate a genuine link
to the domain name, should be granted. The only exception to these,
should be the parody cases, as mentioned in the article, and, when
parody is used in domain name registration, the same should apply, as
for the immediate preceding example (the parodier' right to the domain
name, being forfeited, when challenged by a party with a legitimate
right to the domain name).

However, these are only my opinions, and, as stated in a previous
message, having been cheated out of the domain name to which I was
entitled, by the domain name pirate,and, by the procedures involved in
the domain name dispute resolution process, it appears that my opinion
does not count, as, as mentioned above, in the cases where disputes are
not raised, due to the prohibitive procedures, these cases are
apparently not taken into account, in the examination of disputes, and,
dispute resolution procedures, as no means exists, to register as
parties who are so prohibited from lodging disputes.

I am surprised that the writer of the article, made no reference to the
ccTLD's, as, the same principles should surely apply equally to ccTLD's,
as to gTLD's. But, then, I suppose, other issues could be then raised,
about ccTLD registrars, such as the monopolies enjoyed by them, due to
the appointments by ICANN, etc.

Oh, and, if I did have any say, I would be for removing constituencies,
so that everyone had equal rights, and, so that everyone was equally and
fairly represented, as much as possible.

But, then, democracy is apparently an unattainable ideal.

But, I am an idealist, and, we are not popular people. (How about a
constituency, for idealists? :)

-- 

Bret Busby

Armadale, West Australia

......................................
"So once you do know what the question actually is, you'll know what the
answer means."
 - Deep Thought, Chapter 28 of The Hitchhiker's Guide to the Galaxy
 - Douglas Adams, 1988 
......................................
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