Will the proposed 60 day waiting period cause irreparable harm?

["Joel Barrett" <jbarrett@netdepot.com>]

I believe that a 60 day waiting period, as proposed in this
draft, could be seriously detrimental to both current and
prospective future domain holders.

Let us examine the pro(s?) and cons of the proposed 60 day
waiting period...

So far, the only advantage that I have seen attributed to such a 
waiting period is that it *might* cause a reduction is the number
of trademark disputes for domains that are created in this manner.
Specifically, it is hoped that this waiting period will be looked
upon as significant by courts and that attempts to "steal" a domain
under the pretext of trademark infringement will be discouraged.
This is somewhat speculative, as there are several possibilities
as to how this period will be viewed.  I would like to suggest that
even if this is the case, the "cure" will be far worse than the
current problem.

Here are the disadvantages to this system as I see them:

1) To state the obvious, a 60 day waiting period before allowing
the use of a new domain will be a significant hindrance to many
future domain applicants.  The belief expressed by some that
few will be inconvenienced by this delay is misplaced.

Based upon my own observations, I would say that most organizations
and individuals setting up a new domain are champing at the bit to
get web or email services set-up as quickly as possible.  Since
the temporary random domain scheme proposed is unlikely be widely
used, most new domain applicants will have to make other temporary
arrangements and/or suffer from lost opportunities.

With regard to the contention that "most" new products or services
will take longer than 60 days to bring to market, I know of many
products that were not given their final name until fairly late in
the development process.  Also, some products and services can be
brought to market very quickly.

2) The 60 day delay is an unreasonable and unorthodox burden to
place on new domain holders.  Under this system, I could found a
new company, incorporate, open a bank account under that name,
start doing business with that name, start sending and receiving
mail and packages using that name as part of my address, file for
a servicemark, and start selling a product or service in a very
short period of time - but I would still be required to wait two
months before I could use that domain for web or email purposes.
This makes no sense to me.  Why hold domain names to a higher
standard?

Not only are you allowed to start using a trademark as soon as
you file for it, it is really encouraged that you already be using
the trademark.  Now you may argue that a prudent business will
conduct a trademark search before using the proposed name.  However,
a preliminary search for conflicting trademarks takes much less
than 60 days, and this same search ought to be performed before 
acquiring a domain.  Even if a company files for several possible
domain names *before* undertaking a trademark search, they will
still be able to perform such a search and begin using the chosen
name in every other fashion *long* before they will be free to use
their new domain name.

There is plenty of precedent for a publication period to allow for
interested parties to be alerted to a new company name or trademark.
There is little precedent for such a long enforced delay.  It is
ironic that this draft would cause the rapidly moving internet to
become one of the slowest moving parts of starting a new business
or marketing a new product.
 
3) To make matters worse, new applicants will not even have any
reliable confirmation that they will actually be allowed to use
their desired domain name until the 60 days have passed without
objection.  This means that printing marketing materials or
business cards during this period or advertising the hoped for
web URL and/or email addresses will be speculative and risky.

For reasons explained below, I believe that the risk of a
dispute occurring will not be trivial.

4) The 60 day delay implicitly concedes that there is a strong
relationship between domain names and trademarks (else why
institute such a lengthy delay to allow for others to check
for trademark infringement).  This is not true in many (most?)
cases.  The majority of trademarks are fairly weak to begin
with, are not international, and apply only to a few industries.
These trademarks are not weakened at all by the use of a common
word like "clue" in a context that does not relate to their
legitimate interests.  We seem to be forgetting that these are 
addresses, and not necessarily company names or product names.

The mere existence of the delay, which is explicitly for the
purpose of allowing (and effectively encouraging) trademark
disputes lends credibility to many of those disputes.

5) The 60 day period will almost certainly result a sharp
increase in number of disputes.  Some hope that this delay
will result in stronger domain ownership for those that survive.
However, another possibility is that courts will look much
more favourably upon any trademark challenges during this
application phase.

The fact is that the vast majority of domain holders never face
a dispute under the current system.  The opposite may be true
during this proposed application process.  It is possible that
far fewer people and organizations will be able to get their
preferred domain.  It is also possible that an applicant might
have to go through this process several times before successfully
registering a domain.

6) The entire process is heavily biased towards the concerns of
businesses and especially trademark holders.  There is no excuse
for a delay on personal domains.  If personal domains are allowed
and the tld is appropriate, personal domains should *not* be
subjected to the same delays and scrutinies applied to commercial 
domains.  If I want to register joelbarrett.human or 
thebarrettfamily.home (and those domain names are available and
legal for an individual to hold), then there should be no conceivable 
grounds for objection or delay.  I don't care if someone trademarks
my name, I must still be allowed to use it.

At a minimum, provisions should be made for these types of domains.  
(Unless individual and family slds are not going to be allowed.)
There are many legitimate nameholders other than those with
trademark and in many cases trademarks are not applicable.

7) The application and renewal processes also appear biased towards
businesses and trademarks holders.  The implication is that one
must have a good business reason for registering anything other
than one's name.  I find this bias as undesirable.

8) In addition to the hardships this system places on new domain
applicants, another important aspect of this system is the implication
for existing domains.  If the 60 day period does have the hoped
for effect of strengthening those domains that survive it, it will
almost certainly have the opposite effect of weakening all pre-existing
domains.

The IAHC is basically saying "OK, trademark holders have a strong
and legitimate interest in domains and deserve a lengthy evaluation
period during which they can dispute proposed names.  If they
do not exercise this right to dispute a domain, then they have
somewhat forfeited the right to dispute that domain later without
a clear indication of tangible trademark infringement."

The problem is that the hundreds of thousands of existing domains
did not go through such a period.  The IAHC is basically proposing
to declare "open season" on existing domains.

Why have they not made any proposals that would reinforce or
strengthen the existing domains?  (And no, I do *not* want to
subject all existing domains to a 2 month period of publication
for dispute.  Don't go there...)

=== Summary ===

The proposed delay:

* significantly inconveniences new domain applicants
* encourages initial domain name disputes
* seriously weakens existing domains names by implication
* and is not justified by any comparable process
  (such as incorporation or registering a trademarks)

On the bright side, it might help the less than 1%
of new domain holders that might face a trademark
dispute (primarily by getting the dispute over with
quickly).

I really find it highly unlikely that this is in the best
interest of most users of the internet.

Joel Barrett
jbarrett@netdepot.com
archmage@archmage.com