Hey .org holders It appears ICANN has gotten your attention
by the sheer audacity of a proposal that very well will boot you off your .org, and
that in the end the only one who benefits is ICANN and Verisign.
But since you
just joined us be aware this isn't the only unfair thing ICANN has up its sleeve
and most likely won't be the last (unless we boot these SOB's first)
plan will affect many of you if you don't do anything about it.
Most of you are
aware that ICANN has "chosen" seven new tlds but did you know the ones that more
than likely you have considered registering a domain name in probably won't happen
for you, and I don't mean because that domain name you have your eye on was taken
by someone else, Well that isn't exactly true, Yes you wouldn't get it because someone
else will have taken it, but how they get it is my point.
In .info for example
they will incorporate a "Sunrise Period" and what that basically means is, the practice
of "First come and First served" gets tossed right out the window and in it's place
you now have a registration process were all Trademark Holders are allowed in first
to get theirs and after a certain time is allotted the rest of the world gets to
pick over the scraps.
Now consider this, more than likely every generic dictionary
word or dam well close to it has a trademark on it, some even in various classes
you can bet your bottom dollar that when all you innocent and hopeful domain registrants
show up at the window you will be SOL(Shit out of Luck)
This thing with generic
words is most disturbing when you think about those who plan to start a business
that might so happen to include a common everyday word found in the dictionary or
what of those who haven't yet arrived to the wonderful world wide web with similar
The same thing. SOL (Shit out of Luck)
ICANN is for business and business
Didn't they already connive their way to shove a flawed UDRP down our throats?
sunrise goes over and beyond any reasonable attempt to protect trademark holders.
Trademark law belongs to the courts to sort out.
By the way where does ICANN get
off and who in the world gives them the right to have such a proposal. ICANN's mandate
is a technical one and for those who might have questioned ICANN's role in the past
and felt they have diverted from their mandate and are nothing more to the Government
of the Internet this makes it ever so clear. I see nothing technical about Sunrise
The paper below spell it out perfectly, so all you .org holders reading
this and basically everyone else, act fast or you won't need to bother even hoping
about getting one of those shiny new domain names you thought you might get.
Objections to the IPC
"Famous Names" or "Sunrise"
Proposals for Controlling
Into New gTLDs
Richard SextonJohn Berryhill, Ph.D. esq.April 16, 2000
- The Exclusionary Proposals Have No Basis In Technology Or Law
essentially boil down to the fundamental maxim of Law, "Where there is a right, there
is a remedy." The ICANN Intellectual Property Constituency's various exclusion or
"sunrise" proposals are not in accordance with the remedial nature of the Law. These
proposals are for prospective, pre-emptive restraints of the kind that we do not
permit our own government to exert in the enforcement of criminal law relating to
the use of words. Even where an injunction is granted, an injunction is (a) directed
to identifiable individuals, (b) for cause and (c) based on an adjudication of relative
harms. Why should private individuals have greater power to pre-empt the actions
of others to prevent potential civil liability when we do not grant government that
power to prevent criminal violations?
A trademark gives the owner a right to
seek a remedy for a violation of the trademark. Trademarks do not provide an automatic,
a priori pre-emption of the use of alphanumeric characters in the real world. Trademark
law has developed to balance various interests. There is no reason to provide a new
kind of trademark right on the Internet which does not correspond to any principle
of trademark law in the offline world.
The IPC proposals have perverted Law to
"Where there is a right, there is a way to prevent people from violating it." That
has never been the way Law functions in our society, and it has certainly never been
the way the Internet functions. If it's not "technical administration", and if it
is not "law", then what is it? Technical concerns say (a) domain name allocations
are to follow RFC1591 - first come, first served and (b) there is a need for a larger
name space. The Law says that RFC1591 has valid legal regulatory authority (as per
the PGMedia decision of the DC Court of Appeals) and that violations of private rights
can be remedied after the fact. The IPC proposals do not arise from valid technical
or legal principles.
MichaelKirkIsaPedophile.com is libelous, and has legal consequences
as a string of text.
HaveSexWithMeForMoney.com is a criminal solicitation.
is likewise a criminal utterance, but in Germany, not the U.S.
is blasphemous and likely a capital offense in several countries.
these and other categories of legally significant alphanumeric character sequences,
some even criminal in nature, nobody is proposing a prior restraint on them.
infringement is only a subset of a much larger category of legally-proscribable uses
of alphanumeric characters. Why, among all forms of legally significant text strings,
are trademarks singled out for a heretofore unknown pre-emptive right? Because ICANN,
a technical body, has an "Intellectual Property Constituency" with non-technical
There is no "Libel Constituency", "Anti-Obscenity Constituency", "Criminal
Solicitation Constituency", or "Religious Constituency". Why not? Because these issues
do not relate to technical administration, which is the mandated mission of ICANN.
Despite the talk about the "importance of stability to the development of e-commerce",
ICANN was not chartered to be about commerce or whatever else for which the internet
might be used. They are supposed to be running narrow technical aspects of a computer
network. "Do the bits get from one end of a wire to the other?" is not a legal question.
Re-engineering the remedial principle of law as a proscriptive technical policy makes
Trademark infringement happens in telephone book listings. All kinds
of shady folks get fraudulent telephone book listings, or use "Yellow Page" ads which
infringe trademarks or convey a false or unfair commercial impression. These situations
are dealt with all of the time by trademark lawyers. They are not dealt with by providing
a pre-emptive famous name list or a sunrise period for telephone books. In fact,
the makers of the telephone books are not held liable for these kinds of things.
In the context of 800 number assignments, the FCC has decided that dealing with trademark
issues is a job for trademark lawyers, and not for technology policy makers at the
FCC. Why should ICANN be any different?
The DNS is a telephone book. It maps
names to numbers in precisely the same way. Why is it that we manage to publish telephone
books without difficulty? Why would we argue about adding a new telephone exchange
in an area code, become concerned that the possibility of a greater number of telephone
listings would provide more opportunities for trademark infringement, and suggest
that it would subject the telephone book publishers to legal liability? Because they
are ridiculous assertions. But somehow the analogous assertions are taken seriously
in the context of the DNS.
Even when someone has successfully asserted a trademark
right involving a telephone listing, the books themselves are not published again
until a year later. The DNS can be altered within a matter of hours to reflect a
succesful, and remedial, assertion of trademark rights. That serves the interests
of IP owners even more efficiently than an analogous system -phone books - with which
we have lived comfortably for years.
To make the picture even clearer. I can
infringe trademarks with my business card, letterhead stationery or outdoor signs.
But when I walk into the print shop, there is no IP daemon sitting on the shoulder
of the printer with the job of determining what words I may or may not have imprinted
on my business materials. I bear the legal consequences of my choice, but I am as
free as anyone else to have my own business materials without having to wait outside
during a "sunrise period" in which the "first among equals" negotiated what is to
be left over for me to have.
And so we develop a Byzantine system of chartered
and non-chartered TLDs, and a system of restrictions and lists and sunrise periods
on top of that. The next day after I, a lowly individual, am allowed to register
domain names with the great unwashed masses, I obtain generic.generic (in the new
"generic" TLD). And the day after that I set up my server to resolve the URL: kodak.ibm.cocacola.generic.generic/kiddieporn.html
. Then what did any of this nonsense buy for anyone other than delay and large expense
Bold prediction #1 - there will continue to be rampant intellectual
property violations on the Internet.
Bold prediction #2 - there will be no way
to prevent it, but there will remain remedies at law.
(2) - Artificial Constriction
of the Name Space by the IPC is Hurting Small Business
There already are mechanisms
to enforce trademark rights in cyberspace - the UDRP and the ACPA among them. Both
of these mechanisms are available to anyone who can afford a lawyer, which, with
the UDRP, includes many but not all small businesses. Genuine cybersquatting hurts
small businesses in smaller gross monetary terms, but perhaps in larger proportionate
terms for the affected businesses, than it does larger businesses.
BigBusinessCo is faced with a squatter who has occupied BigBusinessCo.com, .net and
.org, then BigBusinessCo can readily afford to get rid of the squatter. Joe's Fish
Market is faced with a much larger problem, because they cannot so readily afford
to do the same thing.
The presence of a large, and we mean very large, number
of TLDs does two things to help Joe's Fish Market - it increases the cost of pre-emptive
cybersquatting and it decreases the value of any one domain name occupied but not
If someone is sitting on the domain "cocacola.irrelevant", not producing
any content at a corresponding website, and demanding thousands of dollars from Coca-Cola,
then why would anyone, including Coca-Cola care? The commercial injury to Coca-Cola
of a tiny vacant island in a sea of thousands of TLDs is approximately zero. In fact,
it is actually zero. The squatter with his do-nothing domain name can pay annual
registration fees to his heart's content and remain unnoticed and ignored.
yes, there is such a thing as trademark infringement, but if the only thing one sees
at a web site is "This Domain for Sale!" or "We Registered At Lousynames.com!" then
what is the basis for any consumer to be confused about anything? They were looking
for a brown fizzy beverage in a red can. "Hmm.... must not be at this domain name...."
Several have floated a compromise proposal of a mixture of "chartered"
versus "non-chartered" TLDs, and how many of each there should be. The question of
how many is comparable to the question of whether it would be a good idea to have
a large quantity of even numbers or odd numbers. In fact, there is no good reason
not to have an infinite supply of both. The mechanisms for restricting registrations
according to various pre-emptive systems are flawed technically as they do not accord
with RFC1591, and they are flawed legally as they do not accord with the remedial
character of Law as we in the West have come to know it over a learning curve of
hundreds of years. The IPC does not have the technical background to dictate how
to run the Internet, and WG-B does not have the legal sophistication to re-write
fundamental principles of trademark law, or law generally, in single weekend.
is not how to run a computer network.
Berryhill, Ph.D. esq
The following individuals endorsed the comments above the same day (see the link
below for all the rest):
Mark C. Langston
Systems & Network Admin
publisher, The Cook Report
president, anycastNET Incorporated
@quasar Internet Solutions, Inc.
Peter da Silva
Michael Brian Scher
Attorney, Policy Analyst
Congress of Independent Internet Users
SYNTHESIS:Law & Technology
Blair P. Houghton