Re: 60 day wait

[davidk@ISI.EDU]

Dave,

> Dave Crocker writes :
> 
> >Why not impose a system that is self policing. If someone uses a
> >trademark, let the infringed upon person / company sue. It will only
> >take one or two of these suits and the practice will stop.
> 
> 	The problem with that approach -- which is pretty much what we have
> today -- is that the holder of a domain name never has any assurance that
> someone won't come along and take it away from them.  You could argue that
> that is true with ANY use of a name, today, in the real world, but the
> Internet has changed the dynamic considerably.

I happen to agree with the second part of the paragraph ;-).

The trademark issue is a problem for the end-user that registers a domain
and the possible trademark holder(s). We should design the system in such
a way that the registrar and repository don't get involved. The registrar
and repository only store data and should not make any judgement over the
contents. Publishing the data in general makes sure that nobody can sue
them for not providing the information for a trademark dispute. It's not
the task of the IAHC to assist trademark holders as well as infringers on
the same trademarks. However it is the task of the IAHC to make sure that
registrars as well as the repository stay out of the conflict (sometimes
interests of these parties might be the same). A domain name holder can
get security by doing a trademark search before applying for a domain and
could get even more security if insurance is available as Kent suggested
(it might turn out that insurance is cheaper, after doing some basic and
simple checks, then trying to use draconic measures (wait period?) to
make sure that the problem cannot happen at all).

But there is more (that is not said before):

A reservation mechanism will make the central repository more complicated
(and costly) then necessary (you will see at least twice as many
transactions).

I understand that many people that are involved in the trademark business
think that the IAHC should protect their interests, I am convinced that a
majority of the users of the Internet don't share those interests. As is
said earlier, the interest of the users (commercial as well as
non-commercial) is most important. We don't want compromizes for specific
groups, we want a system that is best for 99% of the users. Note that we
only have evidence that the wait period might be benificiary under US law
(and related lawsystems). I don't see any reason why we should impose
country specific restrictions for a problem that has an international
scope.

> 	When you use a name, today, the population of potential challengers
> against you is quite limited, possibly as small as the county in which you
> use it, but certainly no larger than your country.  While 250 Million
> potential challengers is impressive, it's nothing like 4 billion.  The
> Internet makes every user of every name subject to 5 billion potential
> challengers.

And this is exactly the scary thing about a wait period:

4 billion people (or their legal assistents) will watch the domain name
gazette and immediately take action when they might expect a problem with
a domain. They cannot wait because Carl expects that case law will be
established that will force them to act quickly during the waiting period
as a precaution against future damages. We all know that only a small
percentage of the suspicions will be for a good reason, but the 4 billion
people have no choice but taking action since they will not get a second
chance.

David K.

PS don't expect any more comments on this from me since it looks that
   everything has been said by now on this topic. We all know the facts,
   it's now time for the IAHC to make an unbiased decision based on the
   facts and the input of this and other groups *and* in the interest of
   the whole Internet community.
---