Re: Prior Use

[David Collier-Brown <davecb@Canada.Sun.COM>]

Ron Fitzherbert (ron@penguin.net) writes at Wed, 20 Nov 1996 23:51:07
-0500 (EST) :

| This is getting silly!
[...]
| Prior use is not applicable to this discussion.
| The ONLY place that prior use may be applicable is with regards to the
| trademark issues that might surround the use of certain combinations | 
| of three letters.

  I admit some of the debate is silly (:-)), but prior use is 
part of the environment we're faced with, and we should consider
at least to what degree we should let it be part of the decision
process.

  I'd argue that prior use is part of the first-come-first-served
mechanism use to make trademark less subject to litigation, and
has been used elsewhere (patent, copyright) in different forms
as a constraint on FCFS.

  So by that argument, if we use FCFS, we need to consider mechanisms
like prior use to disambiguate ``simultaneous'' claims.

  Similarly, if we try to solve the TLD ``problem'' inside the
constraints of the international trademark system, we inherit
prior use considerations, at least during startup of a domain.
---

  That said, I would speculate that we might want to address the
problem in a way which is substantially similar to primitive trademark,
but builds upon it to deal with the international nature of .com et all,
and the dichotomy between ``world famous'' and ``pretty ordinary''
marks.
   If so, I'd expect prior use, even in an experimental context, should
be considered.  If a registry, for example, had already found a non-
trivial number of registrants, was making a good-faith attempt to
provide addressability for them and met the other requirements to apply
for a domain, then it should have at least first refusal on the
domain.
  If it could not meet some requirements, then it would have to
contract with someone who could, as some disadvantage, to become
acceptable, or see it's experimental use fail.
  If the experiment was already a failure (ie, it had no registrants,
it had no servers, it had not even applied to IANA, etc), then
there would be no need to even raise prior use.

  Think of it as a boolean decision tree: if someone comes
up the ``I've applied'' or the ``I've experimented'' branches, 
they must meet certain tests to get into the FCFS queue for the
creation of domains.  Once in the queue, they have to meet other
tests.
  It's very voluminous, but it's not actually very hard.

  In fact, this is one of the decision patterns that are considered
 ``simple, but lots of just plain drudgery''.

--dave
-- 
David Collier-Brown,  | Always do right. This will gratify some people
185 Ellerslie Ave.,   | astonish the rest.        -- Mark Twain
Willowdale, Ontario   | davecb@hobbes.ss.org, canada.sun.com
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