How many domain name conflicts have there been? (was 60-day)

[Carl Oppedahl <carl@oppedahl.com>]

At 05:47 PM 12/25/96 -0800, Kent Crispin wrote:

>Carl Oppedahl said:
 
>> At 12:15 PM 12/25/96 -0800, Kent Crispin wrote:
 
>> >And if ownership of a domain name does *not* constitute infringement
>        ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
>> >then what good does the 60 day wait do? I go get pepsico.com.  Pepsi
>> >immediately sends me a letter, well within the 60 days.  I tell them
>> >to go to hell -- they can pay me $600000 for the name, if they like,
>> >but mere ownership of a domain name doesn't constitute infringement, 
>> >so I intend to keep it...I now own something clearly valuable to 
>> >Pepsi, and it's just a matter of negotiation, now.
 
>> Nope, you are mistaken.  Pepsi, owner of a unique trademark, will have no
>> difficulty using the Federal Anti-Dilution Law to obtain an order directing
>> you to cease and desist.  You have no negotiating power then.

>You didn't read what I wrote.

I did read what you wrote.  Have you studied the Federal Anti-Dilution law?
 It's a separate thing from the law of trademark infringement.

>Carl, all that you have been claiming for the benefits of the 60 day 
>wait hinge on the law taking some notice of it.  That is a 
>hypothetical.

The 60-day proposal is a hypothetical too.  So you are saying we can't talk
about it, either?

>But let me ask you another question, since you have studied this
>matter quite a bit, and I hope you can give me an objective,
>verifiable answer -- out of the 600,000 domain names in .com, how many
>have involved some form of trademark conflict?

Sorry, I am unable despite all my studies to give a "verifiable answer",
though it's not for lack of trying.  NSI carries out its domain name cutoff
proceedings in secret.  Nobody knows (other than people at NSI) how many
conflicts have been presented to it under its policy.  Nobody knows (other
than people at NSI) how many of them were initiated by companies with bona
fide claims of trademark infringement on the one hand, and how many of them
were merely covetous domain name grabs.  NSI is sitting on a data source
that would be *incredibly* helpful to the Internet community in its efforts
to design a better policy, and is refusing to share that data source with
the community, namely its records of domain name conflicts and cutoffs.

You see, until the NSI policy came along in July of 1995, all trademark
disputes would have found their way to the federal courts.  And federal
courts conduct their business on an open record.  If you or I want to know
how many disputes there are, and the grounds on which the court determined
that it was fair and just to cut off someone's domain name, all we would
have to do is go to the court and read the papers.  But starting in July of
1995, NSI was offering its star chamber, a secret court where trademark
conflicts would be handled in secret.  NSI would weigh the trademark claim,
and decide to cut off a domain name, and the domain name owner only heard
about it after NSI's decision had been made.  And the general public had no
way (and, to this day, has no way) of seeing that the dispute even
happened, let alone the factual basis for the decision to cut off the
domain name.

In the Roadrunner case one of the things we tried to do was force NSI to
hand over its dispute files.  We wanted the files to be available so that
the court could become involved in forcing NSI to come up with a less
unfair policy.  We also hoped that the files could be made available to
members of the public.  I am sure they would have been extraordinarily
helpful to IAHC, for example, in its efforts to come up with a policy.

But NSI fought bitterly to avoid having to hand over those files.  It spend
large sums of money, threw many lawyers at three different law firms at the
task of fighting having to hand over those files.  NSI's reasons are simple
-- it wanted to avoid the embarassment of having people see the minimal or
nonexistent grounds for many of its domain name cutoff decisions.

So no, despite my having studied this matter as deeply as anyone can who is
not privy to NSI's secret files, I am not able to give you an objective,
verifiable answer.  I trust you can appreciate it's not for want of trying.

I have personally counseled many dozens of domain name owners who have been
unfairly threatened with loss of their domain names under NSI's terrible
policy.  Most of them don't have enough money to fight, and NSI has
cheerfully cut them off without, of course, any proof of trademark
infringment.  I'm not the only lawyer who gets these inquiries, I am sure
-- there are other lawyers experienced in the area of threatened domain
name cutoffs, as is clear from the fact that I have only been in court on
one such case (Roadrunner) and that in the six subsequent domain name owner
lawsuits against NSI it's been six other law firms doing the work.

NSI has said that so far it has cut off some 350 domain names.  You might
think this means that the dispute rate is thus about one in two thousand.
NSI often suggests this to be the case, in an effort to minimize the
perception that its policy is harming the Internet community.  But what I
know is that there is a multiplier effect.  I have counseled many domain
name owners who get railroaded into losing their domain names simply
because the trademark owner threatens to do the NSI procedure.  I estimate
the ratio to be twenty to one.  That would mean that the real number of
disputes (a substantial fraction of which are simply covetous trademark
owners who wish to own a domain name but have no legitimate claim of
trademark infringment) is maybe six or seven thousand.  That means around
1% of all domain names.

Of course my estimate could be wrong.  But what I am not wrong about is
that NSI's policy is causing great ongoing harm to the entire Internet
community.  It forces domain name owners to obtain trademarks in Tunisia,
for goodness sake, at great expense.  It forces domain name owners who have
no general need of trademarks to burden the US Patent & Trademark Office
with trademark applications.  It places domain name owners at great risk of
loss of their domain names on just 30 days' notice, unless you happen to
have enough money to go up against NSI/SAIC in court.  And what I am not
wrong about is that IAHC has done a service to the Internet community by
not merely following NSI's party line in all of this.