The reason no one is going to be happy at the end
of the day is that the fundamental tension in my view is that between existing trade-mark
law and the new domain name system. Existing trade-mark law is nationally based,
and in most countries works on an International classification system. All
goods and services are broken down into 42 classes and, grossly oversimplifying,
the trade-mark "ABC" could be registered by 42 different people in each country (once
in each class). So, again grossly oversimplifying, each country can theoretically
have 42 people with a registered trade-mark for a given word. It doesn't take
long to figure out that no system that is being proposed for gTLDs is going to make
42 people times 200+ (somebody help me out, how many countries are there?) countries
happy. Yet all the holders of trade-marks for "abc" have a legitimate claim
to abc.com.If the TLD system is to truly mesh with trade-mark law, there should
be no gTLDs, only ccTLDs, ccTLDs should be broken into 42 SLDs each relating to an
International trade-mark class (plus some more for governments, NGOs, educational
institutions and other organizations who don't fall into the classification system).
Then a trade-mark owner, say someone who registers ABC for class 42 in Chile, would
get "abc.42.cl" as their domain name (or maybe "abc.misc.cl", since class 42
is the Miscellaneous class under the system). If they register it in all classes
in Chile, maybe then they could get "abc.cl".
Sound awful? Well maybe it
is, but the problem is I haven't heard anyone come up with a better way to reconcile
the two systems and guess what: trade-mark law is the law, and you can't change that
by having ICANN promulgate some alternate system. They aren't law-makers.
Until their system actually reflects current trade-mark law you're just going to
see a mess of unecessary litigation.
To demonstrate my point, why is it that abc.com
is owned by the American Broadcasting Company? Why do they have any better
right to it than the Australian Broadcasting Company? I would be willing to
bet that the American company doesn't have the right to use it in Australia as a
trade-mark, and yet if I'm in Australia and punch it into my browser, c'est voila,
there is Drew Carey staring at me and you can bet ABC is shopping that show aroung
the land of OZ trying to sell it. Even if ABC has worked out the legalities
in this example with licenses etc. you know that there are many cases where
the TM rights of someone are getting smushed by the person who got the .com first.
Get
rid of the gTLDs, and save us all some grief.
[The views herein are my own and
do not necessarily reflect the views of my employer.]