Re: We need a separated ".tm" Yes Yes Finally

[Barry Shein <bzs@world.std.com>]

From: "Mikki Barry" <ooblick@netpolicy.com> [responding to me]
On July 25, 1997 at 13:00 ooblick@netpolicy.com (Mikki Barry) wrote:
 > > Who gets ford.reg? Ford Motor Company or Ford Modelling Agency? 
 > 
 > Whoever registers it first.
 > >  
 > > If Ford Modelling gets ford.reg does Ford Motor Co have a 
 > > legitimate complaint? 

Ok, so then why isn't ford.com sufficient by the same reasoning and we
can all go home early?

 > Why should the larger company always win, Barry?  Especially if the smaller 
 > one, with just as much legitimacy in its name, has been on the net longer 
 > because they had more foresight than the larger?

This is completely independent of anything I said, a non-sequitar.

I don't think the larger company should always win.

I don't see how introducing a .reg affects that one way or another.

But I think the question you ask addresses fundamental problems in the
US (and no doubt other countries') legal system which none of this is
likely to solve or even ameliorate measurably.

 > >  
 > > How do you resolve that case? I don't think the usual ok one 
 > > gets ford-motor.reg and the other gets ford-modelling.reg works, if for 
 > > no other reason than they could do that right now in the .com domain 
 > > so leads to the question "ok, so why are we here?" 
 > 
 > First come first served.  The registries and the Internet community should not 
 > be resolving these issues.  They should be resolved by the courts of the 
 > countries involved.  Every other branch of law has "choice of law" clauses for 
 > national and international litigation.  Why should this be any different?

I tend to agree with you, even if it does seem to contradict the
previous complaint that courts of law tend to favor the bigger guy
when it comes to these sorts of commerce issues.

I guess the point being that, for all the potential abuse of the
courts, having private agencies who might well have vested interests
(even if just in sweeping problems off the table as quickly and
painlessly as possible, for them) is likely to be worse.

 > Point here is that across the 7 new TLDs, you would have the exact same 
 > problem.  Who gets ford.com?  Who gets ford.firm?  Who gets ford.nom?  

Exactly, so why does introducing an 8th or 9th help in any significant
way?

Perhaps adding dozens or hundreds might help if some acceptable scheme
could be devised. But just splitting .com into half or thirds doesn't
really get us anywhere, particularly so long as .com is considered the
only location, location, location.

 > Especially since Ford Motor would have the trump card over *all* of these 
 > domains.  Is that more fair?  I hardly think so.

I don't think it's fair, I just don't think this sort of approach
(introducing .reg or whatever) does anything to help solve any of
this.

 > >  
 > > The problem is that trademarks are subdivided by business 
 > > activity, they're not unique across business activities. 
 > 
 > And further subdivided within the business activity.  I don't see a full 
 > solution as coming from the Internet community.  It should not be a matter for 
 > the gTLD-MOU or for WIPO.  Just as it should not have been a matter for the 
 > InterNIC to decide.  Both sets of domain name dispute policies are horribly 
 > flawed.  A registry should be merely that....a registry.  Disputes should not 
 > be taken up by them.  Registrars should not be forced to sign onto a new body 
 > of law drafted without authority and in a vacuum.

I agree.

 > > As an owner, operator and founder of a business called "The World 
 > > (r)" this fact does occasionally attract my attention. 
 > 
 > Under the current policy, you would lose "world" if another group had 
 > registered it in more countries than you have.
 > >  
 > > The proposal to merely divvy it up geographically (e.g., that only 
 > > int'l trademarks get .reg) addresses only one of the important 
 > > dimensions. Both Fords above are certainly internationally 
 > > recognized trademarks, by the proposed scheme both would have a 
 > > legitimate claim to "ford.reg" and we'd be back where we started. 
 > 
 > Which is exactly why we shouldn't be trying to resolve these issues.  Leave it 
 > to the soverign countries.

I think the only problem with that is that sovereign countries are
made up of people, as are any of their decision-making processes.

And, as such, tend towards advocacy politics, whether that's right or
wrong is irrelevant.

So, advocacy posturing tends to influence such decision-making by
sovereign countries. Ultimately they do indeed have the monopoly on
force so de facto get to approve or disapprove of the results.

But we're meandering our way towards philosophy...

 > 
 > Mikki Barry                                 Attorney
 > Internet Policy Consultants                 http://www.netpolicy.com

-- 
        -Barry Shein

Software Tool & Die    | bzs@world.std.com          | http://www.std.com
Purveyors to the Trade | Voice: 617-739-0202        | Login: 617-739-WRLD
The World              | Public Access Internet     | Since 1989