Re: New proposal from Simon Higgs

[Carl Oppedahl <carl@oppedahl.com>]

At 09:02 AM 11/25/96 -0800, Paul E. Hoffman wrote:

>Greetings. The second proposal submitted to this mailing list is now on the
>Web site. It is titled "Top Level Domain Classification and Categorization"
>by Simon Higghs, and is available from
><http://www.iahc.org/contrib/draft-iahc-higgs-tld-cat-03.txt>.

Again, I confine my remarks to the domain-name/trademark aspects of the
proposal.  I find myself in substantial agreement with the suggestions made
by Mr. Higgs.

>Internet-Draft                                              Simon Higgs
>Category: Informational                                   Higgs America
>Expires May 31, 1997                                      November 1996

[...]

>   3.2.2. These designated authorities are trustees for the delegated
>          domain, and have a duty to serve the community.

This duty was in RFC 1591, as I recall, and I am glad to see it here.  NSI's
decision to serve the trademark community better than it serves the Internet
community (in its Second, Third, and Fourth Policies) seems a violation of
this duty.

[...]

>      Each new TLD must be created with an identifiable purpose. A
>      written charter will identify and explain the function and
>      purpose of each TLD.

[...]

>      The following items must be identified in the charter:

[...]

>      3.2.5  Procedure for dealing with domain name and trademark
>             conflicts.

This is good.  NSI didn't do this in 1993 when it began its five-year
contract administering COM, but instead only did it in 1995.

>   4.4. Domain Name Disputes
>
>     It is the responsibility of the applicant to be sure he is not
>     violating anyone else's trademark. Each IR must include a
>     statement to this effect in any registration template.

"to be sure" probably asks too much of the applicant, since "to be sure"
would require doing trademark searching and retention of trademark counsel
in each of the 180 or so countries of the world that have trademark systems.
Perhaps a better phrasing would be "applicant must represent that it is
unaware he is infringing any trademark" and "applicant is advised to make
such inquiry as he deems necessary to determine whether a proposed domain
name is free for use with respect to trademark rights of others".

>     In case of a dispute between domain name registrants as to the
>     rights to a particular domain name, the registration authority
>     shall have no role or responsibility other than to provide the
>     contact information to both parties. In any dispute where the IR
>     is named in any lawsuit, the IR should file an "Interpleader"**
>     before the court, agreeing to abide by the ruling of that court.
>     If the dispute is between parties in different countries, the
>     World Intellectual Property Organization international arbitration
>     service should be used to settle such matters. Until such a time,
>     the IR is obligated to provide uninterrupted service of the domain
>     in the root database.
>
>        ** Interpleader - The IR informs the court that if the court
>           will please decide who is entitled to the domain name, and
>           if the court will please let the IR know, then the IR will
>           delegate the domain name to the correct party.

Yup.  And maybe the IR should state *which* courts it is willing to do this
in.  An IR in Peru presumably only wants to submit to the decisions of the
courts of Peru, etc.

---
Carl Oppedahl, Oppedahl & Larson, patent law firm
http://www.patents.com/ has hundreds of pages of answers to 
frequently asked questions on patent, copyright, and trademark law