RE: [gnso-vi-feb10] VI in practice, Rights Protection Mechanisms, Registry Agreements and Variants of TLDs

[Milton L Mueller <mueller@xxxxxxx>]

Avri wrote in response to Frederick:

> On the blocking example provided, it is clever, I will admit.  But since
> a single registrant could not transfer such a name, the only remedy that
> could be offered would seem to be to take it down and block its further
> usage.  It is well know that the UDRP needs fixing, so if this facet
> also needs to be fixed as well, it can be - we have more then a year in
> which to fix any of the inconsistencies that true reform might cause in
> any of the ancillary policies.  so while they should be noted, they
> should not be sen as blocking.

I am not so impressed by the example, and don't think it poses any new issues 
whatsoever. Indeed, it is a perfect example of why the UDRP would not be 
needed, and should not be used, in such a situation. Keep in mind the following 
facts:

a) A real TM violation as defined by law depends on "use in commerce," not on 
string matching. So the registration of a string that matches a TM in a 
single-registrant TLD is not by itself an infringement. It depends on how it is 
used. As it is now, I can create a microsoft.dcc.syr.edu domain and I defy 
anyone to sue me over it merely because the string matches that of MS. If I am 
using it to sell fake MS products, then yes, I am infringing - and there are 
numerous effective remedies for that even though the UDRP does not apply 

b) UDRP was created because of the tremendous scale of 2nd-level registrations 
outstripped the capacity of the legal system. The UDRP was intended to be a 
primitive first cut to get rid of the easy cases of cybersquatting. Now, if we 
are dealing with the actions of single-registrant TLDs, we do _not_ have a 
scale problem. You are going to have several hundred, at most a few thousands 
in total. Since the percentage of those stupid enough to put at risk their 
prized, expensive proprietary name space in order to infringe major global 
trademarks is going to be small, you are talking about the number of infringers 
in the less than 10 range. 

c) Absence of UDRP does NOT mean absence of trademark protection. There are 
national and international laws that apply. The UDRP was created not to replace 
TM law, or to create an entirely new overlay of TM law.

--MM