THE PROPOSED GUIDELINES MUST EXPRESSLY STATE
THAT THEY DO NOT APPLY TO ANY PREVIOUSLY REGISTERED SECOND-LEVEL DOMAINS
While the proposed guidelines do not specifically apply to the existing
gTlds (.com, .org, .net., .edu., and .gov), and would not so apply since
the Memorandum of Understanding does not apply to these gTlds, the
guidelines should, nevertheless, expressly state they will not be applied
retroactively to preexisting registrations. The reason for this is
fundamental fairness.
Tens of thousands of individuals and businesses have already registered,
purchased and sold domain names, relying on existing laws and NSI's
existing domain name dispute policy. It would be patently unfair to those
who have relied on such laws, made investments and built business around
their domains to be subject to a new set of laws of which they were unaware
at the time they registered or otherwise came into possession of such do
mains. Retroactive application would i) disrupt the lives of individual
registrants and the operations of businesses on and off the Internet; ii)
call into question thousands of consummated domain name transactions; and
iii) create a flood of domain name challenges.
The ban against retroactive application of laws is supported by federal
case law in the context of trademark law. It has been held that the U.S.
Federal Trademark Dilution Act of 1995 cannot be applied retroactively
against marks in use prior to the enactment of the law. In Circuit City
Stores, Inc. v. OfficeMax, Inc., 1996 WL 737251 (E.D. Va. 1996), Office
Max argued that Circuit City's use of CarMax diluted its Office Max
trademark under the Federal Dilution Act. CarMax had been using the name
since 1993. The court granted CarMax's motion for summary judgment on the
grounds that, absent specific Congressional intent to apply the Dilution
Act retroactively, it could not be applied retroactively. The court quoted
the U.S. Supreme Court:
"The presumption against retrospective legislation is deeply rooted in our
jurisprudence, and embodies a legal doctrine centuries older than our
republic. Since the early days of this Court, we have declined to give
retroactive effect to statutes burdening private rights."
. . .
"Elementary considerations of fairness dictate that individuals should have
an opportunity to know what the law is and to conform their conduct
accordingly; settled expectations should not be lightly disrupted. For
that reason, the principle that the legal effect of conduct should
ordinarily be assessed under the law that existed when the conduct took
place has timeless and universal appeal. In a free and dynamic society,
creativity in both commercial and artistic endeavors is fostered by a rule
of law that gives people confidence about the legal consequences of their
actions"
Id. at *5, *6 (quoting Landgraf v. USI Film Products, 511 U.S. 244, 114
S.Ct. 1483, 1497 (1994)(quotation marks omitted).