Re: Re[2]: IAHC Proposal (Attacks Thereon)

[Carl Oppedahl <carl@oppedahl.com>]

At 01:57 AM 01/13/97 -0800, Kent Crispin wrote:

>Sally Abel allegedly said:
>> 
>> We have a basic disagreement as to the 
>> extent of the problem.  My experience 
>> tells me that it is much more profound 
>> than the 400 or 4000 numbers being batted 
>> around in some recent mail.
>
>Could you detail that experience and try to quantify it?  It is 
>sometimes the case that someone who is close to a problem tends to 
>see things in terms of that problem, you know.  For example, I would 
>expect firemen to see arson as a tremendous problem.  People who have 
>a family member die of cancer may tend to see cancer as a bigger 
>problem.  Scientists see lack of science education as a big social 
>problem, etc.  Sometimes being an expert in a field actually is an 
>impediment to making good social policy.

I can certainly quantify it, through personal experience advising dozens of
domain name owners who consulted my firm because they were concerned about
threats made by covoetous trademark owners.  Client confidentiality does
not permit me to list the domain names for you, however.

The thinly veiled an hominem attack seems uncalled-for, to me.  

Until Roadrunner Computer Systems retained my firm to try to save its
domain name, I spent no time doing trademark law.  I spent my time writing
patent applications and advising clients about patents.  For me and for my
firm, domain name trademark disputes are not a profit center -- they are a
loss center.  Most domain name owners don't have enough money to fight
trademark challenges, regardless how baseless.  Nothing would make me
happer than to have this "problem" go away, since I would then lose a loss
center.  I would work fewer hours and make more money.  So I am not like a
fireman urging that arson is serious, or a scientist bemoaning the
insufficient training of post-docs.

How many domain names are there?  Seven hundred thousand?  That's how big
the problem is, if their domain names aren't sufficiently secure against
loss to covetous parties.

>> Another way to spin the numbers would be 
>> to start with the 800,000 figure, take 
>> away the deliberate "pirates" (some 
>> estimates I have seen put that number as 
>> high as 100,000), then take away those 
>> who don't feel the need for a vanity SLD 
>> and are just as happy with a random 
>> alphanumeric for which there would be no 
>> waiting period (see the draft).  Of the 
>> remaining unknowable number (at this 
>> point) take away those for whom the 60 
>> day period is not a burden (also an 
>> unknowable number), because the applicant 
>> a)is not in a hurry; b)has other 
>> domains/accounts available; c)has worked 
>> the 60 day period into a business plan; 
>> d)some combination of the above and/or 
>> for entirely different reason(s); and do 
>> a cost/benefit analysis from there.

>A) It seems fairly clear that the 60 day wait will not hinder pirates 
>at all, and may very well help them -- they wouldn't have to pay for 
>the expense of maintaining nameservers, and every hapless trademark 
>owner would be scouring the list, and would have to start dealing 
>with the pirate immediately.  

"hapless", eh?  

You are, unfortunately, lumping together all pirates.  A more appropriate
analysis would treat two "pirate" categories separately.

Category 1.  Pirates with respect to unique trademarks (i.e. coined words
or other words that are, worldwide, used by only one company).  Those
trademark owners will have little or no difficulty obtaining the domain
names at any time, before or after the expiration of the 60 days.

Category 2.  Pirates with respect to other trademarks, whose conduct above
and beyond the mere registration of the domain name itself gives rise to
infringement.  Those trademark owners will have little or no difficulty
obtaining cease-and-desist relief at any time, due to the other conduct,
before or after the expiration of the 60 days.

The 60-day wait will not help either pirates of category 1 or 2.

Category 3.  Those who register domain names (e.g. clue.com,
perfection.com) that represent words used by many companies, and who are
not, by their conduct, infringing any trademarks.  These parties are not
pirates at all, merely individuals or companies who awoke to the importance
of the Internet sooner than others.  There is no bona fide need for
trademark owners to monitor such parties, during the 60 days or at any
other time, hence they are not "hapless".

>D) in my 
>experience there are very few indeed who won't find the 60 day period 
>a burden.

Did you also ask these people whether they would mind losing their domain
name after, say, two or three years of investment in it?