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Username: MicrowvCat
Date/Time: Sat, August 18, 2001 at 12:12 AM GMT
Browser: AOL Browser V5.0 using Windows 95
Subject: Dot Info Mediation


                Having seen the Dot Info saga from the very beginning and being a follower of ICANN and the ever-evolving landscape of the Internet since the early days I want to offer my .02 US$.  My experience in mediation and trademark law is broad but has mostly been limited to the U.S. so I will happily bow to those with greater experience. Anyhow, these are my observations.

1) I don't know whether ICANN actually monitors this corner of their site or if they have just established it for venting, but for I would say that in-between the knee-jerk reactions and lawsuit-happy "flaming" there have been some notable suggestions posted here.  Whatever the outcome of the Dot Info saga I would hope that ICANN at least takes the postings here as a pulse of common sentiment.

2) There have been a number of comments that have suggested the Dot Info and Dot Biz process have been a conspiracy or a swindle.  I must admit that some decisions have raised my eyebrow but I do still believe at this point that most of the decisions made so far have been in good faith.  Both of the processes for the new TLD's have been trials.  There is no precedent for what ICANN and Afilias & Nuelevel are attempting to do.  In fact, ICANN has been clear that both procedures are trials and that future TLD offerings will be based on what is learned.  It is clear that the international credibility of each of these entities is on trial during this process.   It is in the best interest of all involved that the process is fair and credible.

3) Afilias has stated that they will review the allegations of fraud later this year.  I believe that it is a step in the right direction but I believe that by then it will be too late.  Afilias must make a command decision and act before the "quiet period" ends.  I agree with suggestions posted in this forum that a priority "Landrush" registrar should be identified.  Even if Afilias does nothing with this information it will give them later options.  This opportunity will be lost once the Landrush period ends.  I would stress this point since at this juncture it costs Afilias nothing to internally identify theoretical Landrush registrars but it may be of benefit in the future.

4) Afilias must make an immediate decision as to the intent of the Sunrise Trademark.  There is no doubt in my mind that "," "" and "" should go to the rightful trademark holders.  These are the easy cases and are clear-cut.  It is also clear that "" should go to Brandy International Inc.   The word "snow" is generic but (without researching it) the name seems to have been used in good faith by the Japanese firm.  However "" is being registered by an individual who has a weak trademark claim based on a logo rather than an exclusive right.  Afilias should clarify whether the intent was a logo or a legal claim of exclusivity.  If the intent was any trademark then the Landrush applicants should be content with that.  The decision here will have future implications in any new TLD's.

5) Afilias must also clarify the extent of a Trademark in practice.  A large number of Sunrise claimants have stretched the boundaries of their claims to beyond what was originally stated in the Dot Info Sunrise Process.  Does ownership of the trademark "California Hot Tubs" confer a right to the domain " (a theoretical example since that domain was taken under different circumstances)?"  The wording of the process would suggest that it does not but that it would offer a Trademark right to ""  This will be applicable to the DuPont claim as well as many others.

6) As suggested in this forum Afilias should allow the Sunrise Challenges to proceed (ideally once those points are clarified).  If there is a legitimate trademark holder they will end up with the rights to the domain.

7) After the Sunrise challenge is over the priority "Landrush" claimant (as noted above) should have the right to challenge the Sunrise claimant (the expense of the challenge and rules being similar to that of the Sunrise Challenge).  If the Sunrise claimant has registered falsely then the legitimate Landrush holder will end up with the rights to the domain.

8) A proven false or perjured trademark claim should be cause for forfeit of all Sunrise claims for an individual or group.  This will not only ease the burden on arbiters but should set a precedent that deters fraud in future TLD registration.

9) Future TLD Trademark selection should put a "lock" on transfer of the domain for a longer period.  A lock (prohibition from domain transfer) put on a Sunrise TLD for 5 years would deter fraud since legitimate trademark holders would be registering it for at least that period anyway.

10) Legitimate Trademark holders should be able to petition for domains to be inactive across all TLD arenas.  Yahoo should be able to petition for "Yahooo" to be taken out of circulation in every TLD.  If Alfred Yahooo in Tasmania later wants to establish a personal site for his family and he meets the ICANN criteria (i.e. Legitimate claim, not trying to profit out of public misconception, not selling the domain) he should be able to petition (at his cost) to have the rights to register the domain.  Yahoo of course would be given the right to contest it or Yahoo could have simply registered all of the possible typos and variations of the Yahoo name but this should not have to be done.

Again, I believe that ICANN, Afilias and NueLevel are not conspiring but are learning as they go.  It remains to be seen how quickly they will learn and how they will be viewed.  It is my observation that the public can be very critical but that they will react very favorably if they believe actions are being taken in good faith (even if the actions aren't what they would most like to see).

That's my input.



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