IPC (Intellectual Property Constituency) writes:>Basic
Principles
1. That Registrants of all SLDs should be required to provide accurate
and up-to-date contact information, regardless of the TLD in which their domain name(s)
are registered;<
Valid privacy concerns should not be subservient to the rights
of corporations.
>3. That all Registrars providing SLD registration services must
also agree to adhere to ICANN’s UDRP guidelines and procedures (as presently existing
or as modified in the future);<
I wonder if agreeing to a contract which may then
be unilaterally modified is legally acceptable across all jurisdictions. I wonder
if agreeing to such a contract under duress of not being able to conduct business
is legally acceptable across all jurisdictions. I imagine we'll find out. I do think
it is ethically unacceptable across all jurisdictions to anyone with a sense of fairness.
>Q9:
To the extent it is applicable, what are the lessons to be learned from that experience?
The
overwhelming majority* of the IPC believes that the UDRP is in fact working well
in the majority of cases for rights holders who choose to take advantage of this
procedure.<
This is a damning indictment of UDRP. If the IPC believes that it is
working well, that means it is working well for its constituents, and to the detriment
of everyone else (read the vast majority of domain name holders and internet users).
Even the UDRP panelists can't agree on its workings, there have been strongly worded
dissenting opinions, and panelists openly questioning findings in others' cases.
>Therefore, there is reasonable justification for making all new TLDs subject
to the UDRP, which the IPC strongly recommends.<
There is no justification for
the UDRP to continue to exist at all (short of chartered TLDs who may choose to do
so privately). Certainly, if the IPC constituency is to be given its wish of closed
domains, one would expect them to be willing to give up something in return. I don't
mean that they should accept cybersquatting on any domain, that they should accept
dilution or tarnishment of trademarks, or anything along that line. But they should
accept that non-competing, non-commercial, non-confusing (to all but the terminally
clueless) use of names outside of commercially closed domains is as valid a use of
the internet as their own, and had prior use. Existing domain disputes, whether before
the courts, or the UDRP, or as expressed in the thousands of cease and desist letters
wafting around, do not show any such understanding. The IPC proposal shows no such
understanding either.
>Enhancing Competition for Registration Services
Q19:
Would the introduction of additional undifferentiated TLDs result in increased inter-TLD
confusion among Internet users?
Ans.: An overwhelming majority of the IPC
believes that the introduction of additional uTLDs will result in increased inter-TLD
confusion among Internet users. For this reason, the IPC recommends that the
initial roll-out of additional TLDs be limited to rTLDs so that this concern can
be studied and addressed.<
How can this concern be studied or addressed if it isn't
allowed to happen? How does limiting additional TLDs to rTLDs tell us anything about
new uTLDs. How did uTLD come to mean undifferentiated TLDs which was the question
you purport to be answering? And of what interest is inter-TLD confusion to the IPC?
TLDs aren't intellectual property.
>Q22: How effective would other fully
open TLDs be in providing effective competition to .com?
Ans.: The IPC is unconvinced
of the need for the introduction of new uTLDs at this time, absent proof after more
study is undertaken.<
Who will undertake this study? What will be considered proof?
>It
is a given fact that trademark owners will want to protect their rights upon the
introduction of new TLDs.<
It is a given fact that trademark owners will want to
continue to extend their rights beyond those offered in law through the use of such
ruses as the UDRP, and now the gatekeeping of all new domains.
>If additional uTLDs
are added to the Root servers, there will be a land rush by intellectual property
owners to register their trademarks as SLD names in all uTLDs.<
Why? And is a landrush
by IPOs any more seemly than a landrush by speculators? Let alone suggesting without
a blush that it be given cyberOklahoma in toto in advance.
>The IPC also anticipates
a similar land-rush mentality and behavior with respect to bad-faith actors who will
act upon additional opportunities for cybersquatting.<
If the cybersquat law works
as you contend, and the UDRP works as you contend, why are you worried about cybersquatting?
If they work then you should have no worries. Which is it?
>Enhancing the Number
of Available Domain Names
Q34: Has the inventory of useful and available domain
names reached an unacceptably low level?
Ans.: The explanation provided in the
analysis preceding this question clearly demonstrates that the answer is no.
Therefore, the majority of the IPC favors the addition of new rTLDs,<
Isn't that
contradictory? The availability of domain names isn't low, therefore let's create
new TLDs. Oh, but only ones that you control. Well, that explains it.
>...(ii)
it is completely plausible, acceptable, and realistic for domain name registrants
to combine two or more common, "simple" words, which are still memorable to Web surfers
looking for a particular site...All of these domain names, and more, take two "simple"
words and combine them to create a URL that is still easy to remember.<
This is
extremely misleading. A number of UDRP cases, including a number which have been
found in favor of the complainant, consist of two generic words put together (in
some cases infringing no trademark). See:
http://www.icann.org/udrp/proceedings-list.htm
As
well, adding a word or two to an existing word or two is no protection against it
being taken away through the UDRP if the latter word or two are trademarked (or even
not trademarked). Allowing 65 letters does not expand the domain space if every letter
beyond a trademarked word is considered superfluous in trademark disputes, which
is the soon to be arrived at 'logical' extension of existing cases.
>Q43:
Is the availability of the UDRP and court proceedings as remedies for violations
of enforceable legal rights an appropriate element of protection of intellectual
property rights that should apply to all new TLDs?
Ans.: Yes. The IPC believes
the UDRP and court proceedings have served as successful forums in which disputes
concerning alleged violations of intellectual property rights may be heard...The
appeal process with respect to both dispute resolution systems also is useful.<
Appeal
process? What UDRP appeal process? Have I missed something?
>Q44: Does the start
up of a new TLD pose difficulties for those other than intellectual property owners
that should be addressed through special procedures?
Ans.: ...Intellectual property
owners, consumers, small business owners, and non-commercial interests all have rights
that must be protected in the creation of new TLDs.<
But it is primarily the IPOs
who will benefit from new TLDs being rTLDs, while all the other constituencies will
continue to have their rights eroded.
>Q45: What mechanisms for start
up of a new TLD should be followed to ensure that all persons receive a fair chance
to obtain registrations?
Ans.: The vast majority of the IPC supports a slow, manageable,
structured, and equitable approach to the start up of a new TLD. To that extent,
we strongly support mechanisms designed to deter bad-faith registration of domain
names, but which would at the same time allow the registration and use of domain
names for legitimate, non-infringing educational, political, and other fair uses.<
Whoa,
back up the truck. Now I understand !smacks forehead!. The proposed rTLDs aren't
just for commercial purposes. What IPC is proposing is that educational, political
and other uses of the web (quite possibly any other uses) also be within rTLDs. These
rTLDs would be governed by the same UDRP they know and love so well, or some new
and improved version they have offered to help author. Combine that with the ever-increasing
(in number and scope) UDRP claims against com/net/org domains and this is a blueprint
for complete IPC control of all TLDs, pure and simple.
>Q46: Is the
exclusion of names appearing on a globally famous trademark list a workable method
of protecting such marks from infringement at the present time? Would an exclusion
mechanism be appropriate in the future?
Ans.: ...First, from a purely IP perspective,
there is no internationally recognized list of globally famous marks.<
Which doesn't
stop the IPC from getting one defined via the UDRP.
>Second, the Registrar Constituency
has indicated that an exclusion mechanism at this time would be too costly, difficult
to implement from a technical perspective (they would need to create a filtering
system), and would expose them to liability.<
It is laughable that a filtering
system would be more costly or difficult to implement than the UDRP mechanism. But
this quasi-judicial non-national body does protect them from liability.
>For these two reasons, a large majority of the constituents within the IPC have
asked that a Daybreak mechanism be considered for all new uTLDs and rTLDs until and
unless experience demonstrates that a chartered or restricted TLD will not be subject
to abuse. Under this new plan, during the Daybreak period, owners of trademarks
and service marks will be able to register only the material textual element of their
precise marks as domain names on a first-come-first-serve basis in a new TLD before
it is opened to the general public.<
In a uTLD? How can that possibly be justified?
Well, given that they don't want uTLDs I suppose that is why they provide no justification.
>However,
the marks would have to be registered in a national trademark office for at least
one year<
To protect the existing constituents. Looks like restraint of trade to
me.
>The IPC understands the concerns of those who argue that 20 was too high a
number. For this reason, the majority of the IPC now propose that in commercial
top-level domains that only the exact or precise trademark be afforded protection,
although some in the IPC would extend this safeguard further.<
Such kindness to
the internet community, we have never seen its like, snif.
>The IPC, however, rejects
the argument made by some that the concept of either a Sunrise or Daybreak has no
basis in law.<
It will be interesting to see if a court rejects that argument.
>It
must be kept in mind that the Daybreak proposal is limited in nature. It would merely
give trademark owners a temporary priority in registering domain names.<
Temporary?
Oh, just long enough to register a name, granting it the sole right to then re-register
it in perpetuity. Thanks for clearing up what merely temporary means.
>It would
not give them trademark protection beyond the scope of existing trademark registrations
or otherwise give them new protection under trademark or other laws. It is
aimed at enabling protection of existing rights. The protection of trademarks
in connection with domain names is entirely consistent with existing legal principles.<
This
is a crock. There is no definitive law or legal principle that equates trademarks
with domain names. There is a wealth of contradictory case law, there is not even
a definitive UDRP ruling, that trademark holders have prima facie existing rights
to domain names.
>In the United States, the courts have repeatedly found that the
use of domain names can constitute infringement or dilution of trademarks<
This
is a misleading statement. They have found that they *can*, not that they *do*. And
while they may have done so repeatedly, they have not done so consistently, they
have also ruled against it repeatedly.
>See, for example, the well-known case of
Panavision v. Toeppen.<
It is likewise misleading to cite a single case. There
is no single all-defining case.
>The Daybreak proposal is a modest and limited
idea, although, as indicated, some IPC members would go beyond the outline sketched
above.<
Good cop, bad cop. The carrot and the stick.
>A one-time priority that
will enable trademark owners to avoid some misuse of their marks in new TLDs is consistent
with existing legal principles in all jurisdictions of which we are aware.<
Piffle
and balderdash.
>Information about the Proposed TLD
Q58: How many new TLDs of
each type should be included in the initial introduction?
Ans.:...The important
issue is not how many of each rTLD type are initially introduced (for example, commercial,
personal, religious, etc.), but rather that the total in the aggregate should be
kept small.<
So personal sites should be within an rLTD too. I guess that means
the IPC does want all sites within rTLDs, their claim that uTLDs be studied in future
becomes even more meaningless. Of what possible use (other than for IPC to control
the entire web) could a restricted TLD be for personal sites? What would the restrictions
be, that you must be a person?
>Information about the Policies and Procedures Applicable
to the TLD
Q70: How should ICANN evaluate the sufficiency of proposed intellectual
property protections?
Ans.:...
(1) Centralized, Cross-Registry WhoIs Accessibility
(technical). All TLDs should provide free, real-time access, via the World
Wide Web, to a current updated database of contact data on all registrants in the
TLD. The data should be unrestricted and fully searchable across all fields.<
Absurd.
Including registrants' credit card information?
>(2) Registrant Contact Information
(administrative). All domain name registrants in each TLD should be required
to provide current, complete and accurate identification and contact information.
A failure to provide and maintain such current, complete and accurate information
should result in termination of the domain name.<
Equally absurd. How is this checked?
Do you send out weekly pings, faxes, emails? Daily? Rebeka, here's a career opportunity
for you.
>Q71: What role should ICANN have in the start-up procedures for new unrestricted
TLDs?
...In this manner, ICANN will not directly be involved in the day-to-day
operations of a TLD administrator, but shall serve in a regulatory capacity to ensure
compliance with required guidelines.<
ICANN is putatively not now, and never should
be, a regulatory authority.
My disagreements with those speculating on unsellable
domain names or non-accepted TLDs is nothing compared to the scorn I feel towards
the unenlightened self-interest of the IPC. They do not even bother to pay lip service
to concerns about privacy, non-commercial use, reverse domain hijacking, or a host
of other issues. It will be interesting to see if ICANN does so or if this is a fait
accompli. I apologize for my sometimes intemperate remarks but this has completely
overwhelmed my bozofilter.