Re: New proposal from Ronald J. Fitzherbert

[Carl Oppedahl <carl@oppedahl.com>]

At 02:04 PM 11/24/96 -0800, Paul E. Hoffman wrote:
>Greetings. The first proposal submitted to this mailing list is now on the
>Web site. It is titled
>"ASSIGNMENT OF NEW iTLDs and REGISTRIES" by Ronald J. Fitzherbert, and is
>available from <http://www.iahc.org/draft-iahc-fitzherbert-00.txt>.

As readers may know, my particular interest is in the actions of a registry
with respect to trademarks.  The registry that now administers most domain
names (NSI) has a terribly flawed policy, one that injects grave uncertainty
into any domain name owner's use of its domain name.  (See a discussion of
the flaws in NSI's policy at <http://www.patents.com/nsi.sht>.)  I have not
reviewed the entirety of Mr. Fitzherbert's proposal, but have read only the
trademark-related parts.  Those parts are, in my opinion, quite well
reasoned and well fashioned.  I quote a few excerpts here with some comments.

>It will be the
>responsibility of the registrant to insure that they are not infringing upon
>any other parties rights.

That's where the responsibility belongs, just as it would if someone were
selecting a name for new magazine or brand of toothpaste.  To the extent
that someone feels it would be disruptive to have to change a toothpaste
brand or domain name, he or she may wish to do trademark searching or take
other steps (in some cases, including seeking advice of counsel) to minimize
the risk of disruption.

>Since the internet is large and the number of countries involved in any
>possible dispute is great it will be near impossible for any one registrant to
>verify that the name they wish to register is free and clear of any
>encumbrances there does need to be some mechanism in place to allow interested
>parties a chance to defend their rights.  To this end all new second-level
>domains will be placed into a "comment" queue for 30 days from the time they
>are submitted until they are listed in the root domain servers.

This, too, is a good idea.  

>Names placed into the "comment" queue will be published by appropriate means
>as pending registrations.  Interested parties may review this queue in order
>to research possible infringements and if any are found may take appropriate
>actions as necessary to have the submitter revise or withdraw their
>application.

What's fun about this is that while it might seem like a make-work project
for lawyers (imagine whole crowds of lawyers who charge their clients lots
of money for monitoring this queue) it would not have to be that way.
Probably all sorts of inexpensive monitoring services would be created, most
of them run by non-lawyers, hopefully.  You would pay such a service a few
bucks a year, and provide them a list of the words you care about, and they
run a search every couple of days and email you if they see a match.  

>However, at the end of the 30-day comment period the name will be placed into
>the root-domain servers unless the original submitter has revised or withdrawn
>their application.  The registries are acting as an agent of the submitter,
>they are not authorizing the use of a particular name, rather, they are
>listing a currently unused name at the request of a particular entity.

Exactly.  If someone has a gripe, they could seek advice of counsel and
perhaps ask a court to order the submitter to withdraw their application.
Just as one might ask a court to order someone to stop selling toothpaste
under a particular brand name.

>In short, the registries are providing a service of pointing DNS requests to a
>particular place based upon a "first request for services".  Any dispute
>arising from an entities use of a name is to be settled with the original
>requester, not the registries.  The root-domain servers will continue to
>advertise the name submitted until such a time as the original requester
>cancels their application or other requirements are not met by the original
>requester.

Yes, exactly.

>2.5 Preservation of Trademark Rights
>
>This section is outside the scope of the IAHC.  Trademark usage and
>preservation is better left out of the discussion as it is not the
>responsibility of the IAHC to preserve trademarks, rather it is the
>responsibility of the legal system and the courts.  Since iTLDs can and will
>be utilized by entities in all countries of the world it will be impossible
>for any registry to understand and implement the laws and regulations of all
>of the relevant countries.

Again, exactly right.  

One question that some will ask is, doesn't the 30-day waiting period do
harm?  What if someone has a perfectly innocent domain name, one that could
not offend anyone -- 3E4R5T.LTD, let's say.  Why should they have to wait 30
days?

(If you choose to follow up on this part, please change the "subject" line)

One response might be to make a sub-rule, namely that the domain name will
be turned on right away, but for the first 30 days it will be a risk of
getting cut off if *anyone* objects to the registrar for any reason.
Somehow this seems troublesome, for no better reason than that some jerk
might simply always object to every application for reasons of his own.

Another response might be to make a sub-rule that if the submitter *doesn't
specify the domain name* but merely asks the registry to select one at
random (perhaps resulting in a choice such as 3E4R5T.LTD), then such a
domain name would be turned on right away.  

But I think the real answer is quite different.

*If someone feels they need domain names in a hurry, they should be
third-level domains.*

Suppose what we have is a movie company.  They are about to release a movie,
and they desperately want to have a web site to go with the movie.  They
want the web site active on the day the movie is released.  And, horror of
horrors, for some reason it was necessary to change the name of the movie at
the last minute, and the new title is "Dying Gasp".  Now they'd like to
register a domain name matching the new movie title, namely DYINGGASP.COM.
And yet the policy says there is a 30-day waiting period.  What a horrible
policy this is, right?

Wrong.

The movie company is, let's say, MGM.  They already have, say, MGM.LTD as a
domain name.  So let them simply use DYINGGASP.MGM.COM.  They simply call up
their sysadmin and add an entry to their DNS to create a new third-level domain.

See how easy it is?

That's why Mr. Fitzherbert's proposal of a 30-day waiting period isn't such
a problem as it might seem at first.