Re: 60 day thought

[Einar Stefferud <Stef@nma.com>]

OK Dave -- Your logic is entirely correct, in that many people can and
will simply negotiate a resolution, sometimes without a lawyer;-)...
I know that will be my preference if I ever get involved in such...

>From Dave Crocker's message Sun, 22 Dec 1996 09:34:40 -0800:
}
}At 5:38 AM -0800 12/22/96, Carl Oppedahl wrote:
}>Nope.  During the 60 days, under the IHAC or INTA proposals, the only way
}>to cut off the domain name is to go to court.
}
}	There are avenues other than the courts, though I assume that they
}would remain the final course of action.
}
}	The first course of action is to contact the applicant and discuss
}things.  It's often possible to work out a resolution with no legal
}processes involved.  No, you can't FORCE a resolution that way, but
}occasionally, people ARE able to negotiate compromises without the force of
}law intervening directly.
}
}d/
}

But, now lets ask what the IHAC 60 day wait does to the relative
negotiating positions of the applicant and the challenger.  I am not
sure I have a good sense of the impact on such negotiations.

I know that under the NSI (NOT IHAC), the registrant is basically
castrated and has no power to negotiate, since the name has already
been disabled by mere challenge.  This is the truly onerous and
damaging part of the NSI policy, which forces registrants to sue NSI
as their only recourse.

The challenger is almost irrelevant under the NSI policy situation.
Oddly, the challenger holds all the cards, and the applicant-
registrant has no power to withhold acquiescence to whatever the
challenger demands.  But, NSI policy is not what IHAC proposes!

I (and all of us) know that the NSI policy is irrelevant in the long
term, as it will surely disappear some day before the millenium.  So
lets focus on an NSI-less situation under the IHAC draft proposal.

I do not see the 60 day wait (actually it is a holding period during
which waiting is a consequence) helping the applicant in any way with
a negotiation that arises from a challenge during or after the 60
days.  I certainly do not see any great change in relative negotiating
positions at the stroke of midnight of the 60th day.

I doo see that the registrant is already paying a price for the
holding period, in that this period must be factored into any and all
plans to use the desired DNS name.  We all know that time is money.

As noted long ago (in Internet days) in another message, there is no
discontinuity in the relative strengths of the disputants claims on
the stoke of midnight of the 60th day.

But, I do see how the 60 days wait helps challengers of all kinds,
including the frivolous, to stall the applicant and gain negotiating
strength just by launching a challenge.  I also see that the
challenger can gain power by waiting till day 59 to surface.  This is
the obverse of the case where registrants have been harvesting DNS
names to be sold back to rightful owners;-)...  Now challengers can
also engage in hostage-like harvests.

So, I strongly come down on the side of replacing the 60 HOLD with a
60 day (if not infinite) publication period for 2LD DNS registrations.

If it is not considered a "publication of the facts" for the name to
be mounted functionally in the actual operational DNS where it must
already be visible to all who ask, then a requirement to "publish" in
some other designated public place such as a WebPage, WebIndex,
MailingList/NewsGroup, DatBase or combination there-of should be
sufficient to help anyone check or monitor for conflicts, dilutions
and infringements.

I think that it should also be required of all Trademark Holders who
are properly protecting their trademarks to also "publish" their marks
in a similar way, so that interested people can check things out.
Perhaps we can reflect this publication requirement back onto its
Trademark Industry Origins to get a further measure of its
desirability.  If they don't like it for themselves, why should we
bend over and take it from them?

I see no reason why this should be so one sided, only requiring DNS
name registrations to be subject to such new policies, while
trademarks and other name based stuff is allowed to go along without
such restraints on trade.

Now, if the argument from the trademark industry folk is that doing it
on the trademark side requires legislation in all affected countries,
then I will claim that I have made my point;-)...  If it cannot take
effect without legislation for trademarks, how is it that it can take
effect for DNS names without?

I do not see how the IHAC 60 day "hold" has any force in law before
the courts, without it being written into law (common or otherwise) in
every country where the IHAC policy is to be used and enforced.

For me, an open publication policy is the only useful idea.

Cheers...\Stef