Re: Prior Use - Experimental registries

["Stephane F. Kallos" <skallos@interfusion.net>]

David Collier-Brown wrote:
> 
> 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.

How are applications to the IANA relevant when there was no actual request for 
applications?

To give these "experimental" TLD registries any type of priority, is not logical or 
fair to those who have patiently been waiting for IANA and now the IAHC to provide a 
solution that is acceptable to the greatest number.

The registrants in these experimental TLDs are simply part of an experimental process, 
and little more.

The ONLY advantage the experimental registries should have relates to the proven 
experience they may have gained in this process.  However this experience is relevant 
for the selection of a registry, and not in assigning TLDs to registries.  The 
relevant experience an experimental registry has is relevant only to the likelihood of 
future viability of the potential registry in the same respect as the availablity 
ressources would be.

These unilateral claims to a particular TLD should not be a factor in the decisions of 
the IAHC.

Speaking for myself, hoping this input was useful and productive.
-- 
Stephane F. Kallos       | Interfusion Internet Strategies
skallos@interfusion.net  | http://www.interfusion.net
                         | 800 Rene-Levesque West #1100
                         | Montreal, Quebec, H3B 1X9 Canada
                         | Phone: 514.876.4410 Fax: 514.876.4156