On "design marks" and the failure to address the absence of abuse
I have commented, directly to the members of the IRT, circa Mexico, and subsequent, and through public comments, on several of the proposed mechanisms to protect the rights of others. Some are feasible and desirable, some are not feasible, though desirable, and some are neither. The consideration of "design marks" by the STI, section 4.1, is an example of something which is neither feasible nor desirable. It suggests that the STI authors are unaware of the limitation on text labels in the DNS, of which domain names are one application. Regardless of what theories of right are advanced concerning sequences of labels, labels in isolation, or characters within labels, the definition of labels is not within the scope of ICANN, or any body lobbying ICANN to advance its particular interests. The rational offered for the non-inclusion of "design marks" should not make reference to some irrelevant policy framework, whether the rights associated with trademark holders is to be expanded, contracted, or left unchanged, but because of technical impossibility, absent a revision of the technical standard for text labels in the DNS. Absent from the work product of the STI group is the basic observation that the exploiters of marks, whether with a defensible claim, or without, are not universal in their choice of registries to register their choice of marks. Trademark abuse is absent in several registries -- .cat, .coop and .museum, to name just three. The consequence of failing to distinguish where there is a problem, and where there is not a a problem, is that it results in proposals to cause costs on non-involved parties, without compensation. The better form of the STI set of proposals is that where the applicant proposing a new registry has no policy mechanism to cure a problem which is reasonably certain to exist, that the registry operator eat the cost of accessing externally available mechanisms and policies, such as those proposed by the Working Group. Where the applicant has a policy and practice which is reasonably certain to make externally available mechanisms and policies of no actual value to the intended beneficiary, that the cost be borne by some party other than the applicant, or the requirement waived as being without necessity for the specific applicant. This is submitted as an individual comment, though of course I am employed by CORE, which operates marks-abuse-free registries, and has an interest in the outcome of the issue. Eric Brunner-Williams |