Re:

[Jeff Williams <jwkckid1@ix.netcom.com>]

Richard and all,

Richard J. Sexton wrote:
> 
> >Return-Path: <richard>
> >Date: Sun, 17 Aug 1997 13:30:35 -0400 (EDT)
> >From: richard (Richard J. Sexton)
> >To: richard
> >
> >Path:
> ns1.vrx.net!news1.best.com!nntprelay.mathworks.com!howland.erols.net!ix.netc
> om.com!news
> >From: Connolly <Cyberesq@ix.netcom.com>
> >Newsgroups: comp.protocols.tcp-ip.domains,misc.legal,misc.legal.computing
> >Subject: Re: Trademarking CANNABIS.COM??
> >Date: Sat, 16 Aug 1997 11:42:22 -0400
> >Organization: Connolly & Connolly
> >Lines: 214
> >Distribution: inet
> >Message-ID: <33F5CA5E.17D@ix.netcom.com>
> >References: <5ssotq$j2t$2@news1.epix.net> <33F36F67.18B3BAA9@lightlink.com>
> <5t071b$k5p$1@ns1.vrx.net> <33f41099.130657038@snews.zippo.com>
> <5t1mhp$pc7$1@ns1.vrx.net> <33f47c88.158292320@snews.zippo.com>
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> >X-NETCOM-Date: Sat Aug 16  8:43:58 AM PDT 1997
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> >Xref: ns1.vrx.net comp.protocols.tcp-ip.domains:379
> >
> >Gil G. Silberman wrote:
> >>
> >> On 15 Aug 1997 09:45:29 -0400, richard@ns1.vrx.net (Richard J. Sexton)
> >> wrote:
> >>
> >> >No, please, do go on. What you've described below is the well
> >> >known set of problems with NSI's handling of international domains
> >> >subjigated by the laws of the state of Virginia. What we nead to
> >> >hear is ideas to make these workable on an international basis.
> >>
> >> Thing must be deperate if you are turning to me as a possible oracle.
> >>
> >> No, I have no good suggestion on how to handle things, and I too am
> >> waiting for brilliant ideas to come along.  The problem is structural:
> >> we have as an overlay to both an international Internet and a host of
> >> private domain name registries ~200 different countries, many with
> >> incompatible trademark laws and in any event all with competing
> >> trademark registries.

  The answer here is really quite simple.  If those countries with 
regisrties and a member of the international community and indeed
have representation in the UN, than they should be bound by
international
law in these matters, especially tradmark law.  This was pointed out
befor on the old IAHC-Discuss list some time back by myself and some
others.  
> >>
> >> I'm afraid that the de facto solution is going to be a continuation
> >> and expansion of today's non-solution: the major domain name
> >> registries will set up a single resolution forum,
> >
> >The current thinking under the gTLD-MoU is that there will be  several
> >fora, including the Administrative Challenge Panels, WIPO Arbitration,
> >and National/Regional Arbitration panels.

  I believe that this was also discussed on the old IAHC-Discuss
list.  These pannels have some uses as to documentation for 
spicific filings, but non in really resolving any Domain disputes.
> >
> >> staffed by their own
> >> employees
> >
> >Not under gTLD-MoU.  The objective is to divorce the registration
> >process from the dispute resolution process.

  That is not how the gTLD-MoU folks have characterized it.
> >
> >> and with an advisory board of industry, government, and
> >> lawyer types,
> >
> >The advisory board under gTLD-MoU is there to advise on major policy
> >decisions, not to decide which of two claimants gets a  domain name.

  Which is nearly useless function.
> >
> >> that you will agree to use and submit to when you
> >> register your domain.
> >
> >Under gTLD-MoU, the "conclusive" dispute resolution processes are
> >optional.  Registrants and claimants are free to go to court if they
> >wish.

  That is always the case anyway.  SO how is this any advantage.  
Pointless for the most part.
> >
> >> Their policy will bear little resemblance to
> >> actual trademark law, and although it will be perhaps more detailed
> >> than the current Internic one, it will operate in favor of the larger
> >> organizations that wish to displace domain name owners.
> >
> >If this supposed to be a description of the gTLD-MoU approach, then it
> >is erroneous.  The gTLD Administrative Challenge Panels are constrained
> >to base their decisions on the international notoriety of the
> >challenger's trademarks (a Tunisian registration won't count for very
> >much any longer), but the gTLD-MoU policy is calculated to preserve the
> >rights of a registrant who is using a domain in good faith.  Only where
> >a domain name coincides with (or is confusingly similar to) an
> >internationally-known mark AND the registrant is without ponderable
> >intellectual property rights corresponding to the domain (which do NOT
> >need to be international at all, much less registered in 35 countries as
> >some opponents have incorrectly stated) will the gTLD substantive
> >guidelines for ACPs cut off the prior registrant.

  Most US courts recgonize International Tradmarks.  
> >
> >>  There will
> >> continue to be a variety of rogue registration agencies, both private
> >> and on nations far outside the reach of the legal jurisdiction of
> >> other nations' courts, that will register anyone and refuse to respond
> >> to pressure for the consortium.
> >
> >But how will the rogues get their zones into the root?
> >>
> >> My best solution is for the domain name registration agencies to get
> >> out of the business altogether of arbitrating disputes, and instead to
> >> leave the matter to the courts -- even on an international basis.
> >
> >Golly, do you think Mr. Silberman is an attorney?  Really, consider that
> >just a few lines ago, he was upset that the new proposals would favor
> >large, deep pocket players over the little guy.  What do you suppose is
> >the effect of subjecting domain name registrants to lawsuits everywhere
> >on the planet?  At least the gTLD-MoU does not extend the jurisdiction
> >of courts, and encourages the use of affordable alternatives.

  This is only useful if BOTH parties decide that those alternitives
are acceptable.  Otherwise, you are back where you started.
And again, I will state this seems to just be a rehash of discussions
on the ole IAHC-Discuss list.
> >
> >> This, plus allowing several hundred new top level domains,
> >
> >And what equitable method do we propose for deciding who will have
> >control of these domains.  Once the gates are opened, what's to say that
> >we shouldn't have a few billion top level domains  . . . except that the
> >root can't handle that many.
> >
> >> fostering a
> >> competitive system of domain registration with many agencies, and
> >> resolutely opposing the notion that owning a trademark to a single
> >> word should entitle a company to ownership of that word in all of its
> >> manifestations as a domain name. . . It might, in the case of a name
> >> like Xerox.  But one certainly cannot, as a legal point, own all
> >> instances of the generic word "cannabis."
> >>
> >> The state of the law is not well-developed and there are bound to be
> >> problems, but courts are bound to resolve things in a more realistic
> >> way than NSI and its follow-ons.  They already have 100+ years'
> >> experience dealing with international jurisdiction issues,
> >> understanding trademarks, setting up procedures.
> >
> >Oh, yes, let's not forget that they understand the Internet, too . . .
> >NOT!
> >
> >>  Typically, when a
> >> foreign company conducts itself so as to hurt a U.S. company, U.S.
> >> courts will intervene if there is some kind of harm that occurs within
> >> the U.S. on account of that company's reaching out to do business
> >> here.  The company can either come to the U.S. to respond to a suit,
> >> in which case it may get a judgment against it, or ignore the suit
> >> entirely, in which case it is almost certain to get a judgment against
> >> it.  The judment may only be enforced if and when the company actually
> >> decides to do business in the U.S.
> >>
> >> Such a solution seems to be reasonable for the Internet.  If a foreign
> >> company operates a domain or a website that infringes a U.S. company's
> >> trademark, then either a) they do no commerce or have no presence in
> >> the U.S. other than that website, in which case any U.S. action
> >> against the company is either without jurisdiction or will be
> >> unenforceable; or b) they are trying to operate in the U.S. in terms
> >> of taking credit card numbers, shipping products, setting up
> >> facilities, recruiting members, in which case they should respect U.S.
> >> trademark law, there is U.S. jurisdiction, and a court order could
> >> conceivably be enforced.

  This is again easely solvable.  Use the international tradmark
as a guidline or the only recognized tradmark for those Domains
that are being used to do buisness on an international basis.
> >>
> >> There ought to be some development of the technology and the law.  On
> >> the legal end, we need to further normalize the trademark law and
> >> exchange of information among various countries.  This could be done
> >> via an extension to the current treaty conventions.
> >
> >See you in a decade or so :-(
> >
> >> It ought to be a
> >> simple matter to apply for and secure some kind of international
> >> trademark registration, in the same way that one may now obtain a U.S.
> >> trademark.
> >
> >Oh, yes.  WIPO's  only been trying to accomplish this for about 50 years
> >and it hasn't  produced a draft convention.

  WIPO is nearley a useless org in my opinion.
> >>
> >> On the technical end, we have to simply recognize that many companies
> >> may have trademarks to a given word, and that trademarks in one
> >> country do not necessarily carry over to trademarks in another.  This
> >> is as big or bigger of an issue with web site content as it is with
> >> the domain name itself.  A web site may be perfectly appropriate and
> >> legal in its own country of operation, but not in another.  We need a
> >> way to track the country a user is logging in from -- perhaps via a
> >> cookie or a configuration code in his/her browser -- and on a case by
> >> case basis if that user is on the net from a country in which a
> >> particular website is violating the trademark, they could get a
> >> "splash screen" that appears before the web site activates.  Something
> >> like "Notice: certain products and services on this screen are
> >> identified as 'The Gap.'  Please be advised that a company known as
> >> 'The Gap' operates in [insert user's country here] and that 1) this
> >> website is in no way associated with the company known in [insert
> >> country] as The Gap; 2) none of the goods and services on this website
> >> are endorsed by, produced by, or otherwise connected with such
> >> company.  To reach their web site, click <<here>>.
> >
> >Oh, goodie.  Now  let's expand that concept and dictate the content of
> >websites generally . . . as ell as the contents of ftp sites . . .
> >e-mail  communications . . . and the 100-or-so cc's of jelly inside my
> >skull.  I don't think so.
> >
> >>
> >> That way, you entirely get rid of the issue of confusion as to source
> >> or sponsorship of goods, which is the heart of the trademark concern.
> >> Nobody can "steal" another company's identity or pass its goods off as
> >> anothers.  Users are still able to access any site they want -- they
> >> simply get a notice.  Courts still have jurisdiction. . . and the
> >> domain name registration agencies can cooperate by creating and
> >> maintaining a standard notice screen and handling procedures for
> >> instituting these notices.  And with 200+ top level domains (or better
> >> yet, an unlimited number), no company could reasonably complain that
> >> it is unable to use its own name as a domain.  If gap.com is taken,
> >> the gap could always be gap.jeans or something like that.
> >
> >"Unlimited" is a pipe dream.  Even the most maniacal DNS reformers admit
> >that the root will incinerate before we reach 30,000 Top Level Domains.
> >That's actually a  small enough number to represent a form of created
> >wealth.

  Hence, a good reason to have more than one ROOT and do zone transfers.

> >
> >>
> >> We also need a way -- and I assume this is not far off -- for ISPs to
> >> collect domain name lookup tables from the hundreds of domain name
> >> agencies that will inevitbly arise.
> >
> >Ahem.  We just went through that problem, a/k/a domain poisoning.
> >E.g.., Alternic's fun with the "helpful hints" facility of BIND.
> >Iperdome's insertion of a non-existent zone into nameservers around the
> >world.  DNS information *has* to flow from the root or the Internet will
> >destabilize.

  I agree.
> >
> >> Perhaps the ISPs themselves
> >> should get into the registry business,
> >
> >See http://www.gtld-mou.org/#newsregistrar
> >
> >> and each would keep a master
> >> file that contains the domain names from all known registration
> >> agencies.  I don't see why we need to assign a specific top level name
> >> (i.e. the ".com" domains) to a single agency either.
> >
> >The only problem is that there will be as many authoritative databases
> >as there are ISPs.  Anyone who designs databases for a living knows that
> >that will produce unwelcome results.  However, the presence of multiple
> >registrars for any given TLD is the crux of the gTLD-MoU.

  Yes, and unfortunatly it is inadaquate to handle the task as currently
drafted.
> >
> >Kevin J. Connolly
> >Member, gTLD-MoU Policy Advisory Body
> >(Expressing only his personal opinions)
> >

Regards,
-- 
Jeffrey A. Williams
DIR. Internet Network Eng/SR. Java Development Eng.
Information Eng. Group. IEG. INC. 
Phone :913-294-2375 (v-office)
E-Mail jwkckid1@ix.netcom.com