Re: [ifwp] Re: new iana draft bylaws

["Martin B. Schwimmer" <martys@interport.net>]

1. On What Constitues An Established Fact

 I requested Prof. Mueller to cite a study other than the one he authored
to support the proposition:

"It is now an established fact that brand name holders have been as likely
to abuse the NSI dispute resolution process as to be abused by name
squatters."

not because I want you to be my personal research assistant but because he
is participating in a debate and he is trying to convince me to adopt his
point of view.  First he wants be to believe him because he is "an unbiased
academic scholar" and because what he believes "is now an established fact."

He is comparing two numbers - "brand holders who have abused the NSI
process" and "brand holders who have been abused by name squatters."  

Neither number is verifiable.  Anecdotal reports won't support a reliable
conclusion for either number.  Even if someone was granted access to every
single petition to NSI, they would not to conduct a likelihood of confusion
analysis of petitioner's claims in each case to determine whether that was
an abuse of the process.  The only true indicator of whether the process
was abusive was if the DN holder succeed in a civil action - as Prince plc
did, and Juno has at a preliminary level.

As for the number of brand holders who have been abused by name squatters -
how does one accurately compile that number?  If a trademark owner quietly
has to buy off ten variations of its marks, there is no public record.  If
a litgation quietly settles, was that caluclated?  IF NSI refuses to sue
its policy because it requires an identical mark and the trademark owner
was a small company which only filed one registration, nad that included
the company logo, so it couldn't use NSI policy - does that count as abuse
by the trademark owner or by the name squatter? 

2.  On Whether  Domain Names Function As Trademarks

The Trademark Act of the U.S. defines a trademark as "any word, name,
symbol or device, or any combination thereof," by which a person uses to
identify and distinguish his or her goods or services.

Most other countries have flexible definitions and over time will
incorporate formerly unconventional trademarks (shapes of packaging,
colors, - Harley-Davidson would liek to register the sound of its engine).
It is a results test - if it identifies a source of origin, it is a trademark.

Now you put forth the proposition that:  "A DN is s "String of characters",
and has little relationship to a Trademark Name."  I beleive that the
existence of yahoo.com, source of YAHOO brand services, netscape.com, where
you can access NETSCAPE brand services and aol.com, where you can access
AOL brand services, are obvious examples of a connection.  I also invite
you (and the other readers) to look at, for example, page 70 of the August
10 issue of COMPUTERWORLD magazine (accessible at computerworld.com), which
identifies 38 companies in the advertiser's index and their domain names.
In 37 0f 38 of these, the domain name is IDENTICAL to the house mark or
house acronym.  The one exception is InterSystems, which used intersys.com.

Now you rebut this phenomenon with a "No."  Let the readers look at the
facts and draw thier won conlcusions.

Nevertheless, I do note that in your reply to my (tongue-in-cheek)
suggestion that if, due to a proliferation of gTLDs, domain names ceased to
be able to distinguish goods and services, that businesses would use random
strings (as they now do with telephone numbers), you replied that:

"Random character strings are not necessarily identifiable as
>clever DN to highlight your business on the Internet as represented by a
>DN, and hence in using this approach may not best serve the business purpose
>in which one might use their DN."

Your statement that businesses use clever DNs to "highlight" belies your
(and the Mueller/DNRC) argument - using a symbol to highlight a business is
using a symbol to distinguish your goods or services - it is using a
trademark.  That is the law all over the world.  

3.  First Come First Served

Domain Name holders did not come first.  We don't have a concept that if I
started advertising COCA COLA on television before Coca Cola did, I get the
rights to sell Coke on TV because they "didn't wake up to the potential of
TV before I did."  your perspective on who is first is a bit
internet-centric.  Which is find when it comes to pretty much every thing
you do in your work, but is not constructive in this debate.  And in fact,
first come, first served is pretty much the rule for allocating trademarks
around the world.  Only it may be the case that it was the trademark owner
that came first.  Who started using telecommunications to advertise its
products first, Coca Cola or you?  I would say that it is you who are the
newbie but you may misconstrue my tone. I would like to inject some humor
into this.


At 01:20 AM 8/17/98 +0100, you wrote:
>Marty or whomever you are and all,
>
>  Let me say first off I found this response extremely condescending, sort
of in
>line with
>some of the comments that Dave Crocker or a Kent Crispin would make.  At
least
>Jim Dixon and others, would approach Miltons comments with some MEANINGFUL
>and class comments.
>  And now for the rest of my comments below his.  (See below)
>
>martys@pop.interport.net wrote:
>
>> Prof. Mueller begins his critique of Mr. Dixon's request for a stable DNS
>> by noting that he is:
>>
>>  "an unbiased academic scholar"
>>
>> and finishes his posting with the following:
>>
>> [let's] not feel
>> that we have to kiss the ass of a bunch of powerful but slow crybabies
who feel
>> threatened by it. No special representation for trademark interests. No!
None!
>> --MM
>
>  Well I would characterize Miltons comments in my mind as based on the
>Trademarkinterests own comments and actions, which many of us for the past
two years
>
>have noticed in the extreme.
>
>>
>>
>> Prof. Mueller supports his "unbiased" view towrads trademark owners with
>> the following:
>>
>> "It is now an established fact that brand name holders have been as likely
>> to abuse the NSI dispute resolution process as to be abused by name
squatters."
>
>  And many legal cases support this observation.
>
>>
>>
>> Professor, please cite a study which you didn't write which backs this
>> proposition.  Established facts tend be those which are uncontroverted.
>
>  Well if you, whomever you are, would get off you lazy ass and look them
>upyourself, you would know.  You could start with the archives of the
IAHC-Discuss,
>DOmain-policy e-mail mailing lists.  Unless you are of the belief that
Milton or
>anyone else is your private research assistant.  I would be happy to do
this for you
>
>should you wish to sign a contract paying me for my time to rehash and
re-post
>privately to yo all of the relevant articles and studies that have already
been
>posted
>on various mailing lists to support this observation that Milton has stated.
>Otherwise
>DO YOUR OWN RESEARCH!  And if you cant find what you are looking for
>than you can consider yourself as amongst one of the CLUELESS, and remain
>so.
>
>> I think your facts are wrong.
>
>  Well I for one disagree.
>
>> I note that when Ms. Kleinman stated in a
>> posting to this group on Friday that "all studies"  supported her point of
>> view, I wrote in asking her to cite "all studies."  She did not respond.
>
>  Well this is her problem and this comment does not support your argument in
>anymeaningful fashion.  So what is your point?  Or is there one?
>
>>
>>
>> Mr. Williams has written with a similar unsubstantiated endorsement of your
>> "fact," suggesting at least a willingness to believe your view (if not a
>> desire to analyze it).
>
>  I have on many many occasions analyzed it and substantiated my
comments.And to
>substantiate it yet again because you have not been paying attention
>over the past several years, is your own rather serious problem that YOU
>should seek to correct yourself.  (Review relevant archives of mailing lists
>that I pointed out just above).
>
>> I agree that cases like pokey.org, juno.com and
>> prince.com might make us feel that the "little guy" is getting picked on,
>> but that does not support the position that trademark owners are the true
>> villians of DNS abuse.
>
>  No one is saying that the trademark interests are "Villians", they are
just part
>of theproblem instead of being part of the solution.  That doesn't make them
>"Villians" it
>just makes them wrong more often than not.  It is also fairly stark
evidence that
>they do not want to make the effort to adequately modify Trademark Law
>in an appropriate manner that meets the needs and demands of the Internet
>community especially those engaged in ecommerce.
>
>>
>>
>> And by the way, the juno.com, prince.com and pokey.org situations were all
>> made possible by NSI rigging a policy that was uninformed by the most
>> important principles of trademark law. The abuses of the NSI process is an
>> argument for a good system, not the absence of a system.
>
>  Agreed.  But it was NSI bowing to the demands under legal threat form
theTrademark
>Interests.  SO these Trademark Interests only foolishly put themselves
>in the light that they now are seen due to their own ineptitude.
>
>>
>>
>> As far as the general tone of your and Mr. Williams' response that this is
>> somehow a "big trademark owners vs. pioneers of the Internet" fight, let me
>> ask your opinion on something.  Certainly you would agree that YAHOO and
>> AMAZON.COM are the kind of heroes you are talking about, the kind of brands
>> we need to see flourish.  Well, what about the guy who registered
>> amazom.com, and the company (Data Arts) which registered every variation of
>> yahoo (i.e. ayhoo.com), which practice seeks to syphon off business from
>> these sites - is that the big trademark owners pushing the little guy
>> around, or is it an authentic threat to e-commerce, if we have no
>> procedures in place to stop these activities?
>
>  Well I for one do not see the problem in which you are attempting to
show here.A
>DN is s "String of characters", and has little relationship to a Trademark
Name.
>
>>
>>
>> And how precisely would having a fair system of adjudicating domain name
>> disputes constitute a threat to today's heroes of e-commerce?.  Give us a
>> fact pattern.
>
>  I just did, see above.
>
>>
>>
>> I believe that Prof. Mueller is leading you folks down the garden path.
>> The irony of the situation is that domain names will only become a valuable
>> form of intellectual property if it has a stable system of allocation and
>> enforcement.
>
>  I agree with your conclusion.  And that method of allocation has been
>established.It is referred to as "First come, first serve".
>
>> The DNS should DIALOGUE with people who are familar with the
>> world's trademark systems so that the DNS can LEARN from the world
>> trademark systems and adapt them to fit the uniqueness of the DNS.
>
>  We respectfully disagree.  Rather it is the Trademark Interest that need
to adapt
>to thefit the uniqueness of the DNS.
>
>> I say this because domain names are more like trademarks then they are
like any
>> other form of intellectual propety (and you know domain names are a form of
>> intellectual property because people pay more than their face value for
>> them).
>
>  Yes DN's are a form of intellectual property, but a unique one.  And as
such
>aunique one it is the Trademark Interest that need to find a legal way to
encompass
>them
>into Trademark Law, not the other way around.
>
>>
>>
>> stating that domain names do not function as trademarks, that they are
>> merely "sttrings" flies in the face of your own experience, everytime you
>> type in yahoo.com, aol.com, microsoft.com (well, you may have other
>> feelings when you type that in), excite.com, cnn.com, msnbc.com, etc.,
>> etc., etc..
>
>  No it does not.
>
>>
>>
>> If you follow Prof. Mueller's ideas that there should be a zillion TLDs
>> which "de-couple" themselves from brands, and there be no safeguards,
>> dispute resolution mechanisms, no rights protection systems - then domain
>> names will be valueless as identifiers, and companies will realize they are
>> better off with random character strings as domain names, and will have to
>> rely exclusively on trademark protection to protect their branding.
>
>  This logic and conclusion is flawed for several reasons.  I will just go
over
>onehere. The resolution mechanism is simple, it is "First come First
Serve", just
>that simple.  Random character strings are not necessarily identifiable as
>clever DN to highlight your business on the Internet as represented by a
>DN, and hence in using this approach may not best serve the business purpose
>in which one might use their DN.
>
>>
>>
>> P.S.  My comments refer to commercial uses of the Internet.
>>
>> P.P.S. Stating that the U.N. agency known as the World Intellectual
>> Property Organization (WIPO) should not advise the DNS on intellectual
>> property portection because it is "biased" towards trademark law is like
>> stating that you should not go to a doctor for medical advice because he or
>> she would be biased towards medicine.  Don't disqualify someone because
>> they know what they are talking about.
>>
>
>  Problem with this statement and especially with it's conclusion is that
first, it
>is wellknown that WIPO is biased towards Trademark Interests, and as such,
cannot
>realistically serve the Internet community in an unbiased manner in DN
disputes
>because to do so requires that the arbitrator/mediator be unbiased to
begin with.
>Second, it has only been very recently that WIPO has even had a Clue about
>the DNS system.  I have questioned many WIPO officials and they didn't even
>know how the DNS system and Root Server structure works.  If they don't even
>have a general knowledge at this simple level of understanding than they
certainly
>makes them a far cry form what a doctor is to the practice of medicine.
Hence,
>now you conclusion is invalid by definition.
>
>> >Jim Dixon wrote:
>> >
>> >> My concern is mostly with stability of the Internet; in this case
>> >> it is more than operational stability that we are talking about.
>> >> For the last few years the Internet has been increasingly disturbed
>> >> by confusion and disagreement over domain name questions. The basic
>> >> cause of this has been a failure to take into account the rights of
>> >> brand name holders as generally accepted in the outside world.  Our
>> >> stubborn refusal to recognize these rights has resulted in deadlock
>> >> at the heart of the Internet.
>> >
>> >As an unbiased academic scholar who has studied the domain name debate
>> >closely over
>> >the past three years, I can assure you that the source of the conflict has
>> >almost
>> >nothing to do with a "failure to take into account the rights of brand
name
>> >holders." Jim's comment shows that people who are very good
businesspersons and
>> >technicians can completely misunderstand basic issues in institutional
>> >development
>> >and political economy.
>> >
>> >The real problem stemmed from the absence of clear legal authority over
>> >the name
>> >space, and the new, unprecedented character of the name space as an
economic
>> >resource. Entrepreneurs and technical people were proposing to create new
>> >TLDs, and
>> >IANA came up with draft-postel. In the meantime, courts of law in
>> >virtually every
>> >developed country began to, and still are, protecting legitimate trademark
>> >and brand
>> >rights via litigation.
>> >
>> >It is now an establshed fact that brand name holders have been as likely
>> >to abuse
>> >the NSI dispute resolution process as to be abused by name squatters.
>> >
>> >Aside from its total historical inaccuracy, Jim's implied
identification of the
>> >crisis in Internet "governance" suffers from a terrible case of naivete.
>> >Intellectual property interests have a really bad, and very predictable,
>> >history of
>> >panicking at the emergence of new media, and proposing utterly stupid and
>> >destructive forms of property protection that would have no effect other
>> >than to
>> >stifle the medium in question. Had we "represented" the IPR/copyright
>> >people in the
>> >formation of the video cassette businesses, they would have banned the
VCR, and
>> >failing that, they would have set up a ludicrous taxing system on
>> >household users or
>> >sales of equipment. Both attempts were defeated, and now the movie makers
>> >gain more
>> >profit from the video rental business than they do from first releases.
>> >
>> >In short, Jim, your attempt to privilege intellectual property makes no
sense
>> >whatsoever.
>> >
>> >And I have heard from other ISPs this plaintive expressions of fear that
>> >"ecommerce
>> >is coming and if we don't clean up the Internet's act the medium will
>> >fail." Well,
>> >I'm sorry to be the one to break the news to you, but e-commerce is here,
>> >now. There
>> >isn't any way it's NOT going to happen. Dell Computer sells $5 million/day
>> >on the
>> >Internet now. Analysts estimate $327 billion in Internet commerce by 2002.
>> >All this
>> >is occurring and will continue to occur regardless of minor little
>> >problems certain
>> >brand holders experience with a few cybersquatters, and despite the
so-called
>> >Intellectual property crisis that's always about to happen. As someone
>> >who's taught
>> >seminars on Internet commerce to business students on two continents, and
>> >who has
>> >watched them hatch business plans for aq wide variety of ideas, the simple
>> >fact is
>> >that Internet commerce makes enormous economic sense in a variety of
>> >industries.
>> >
>> >So let's develop the Internet, let's be of, by and for the Internet, and
>> >not feel
>> >that we have to kiss the ass of a bunch of powerful but slow crybabies
who feel
>> >threatened by it. No special representation for trademark interests.
No! None!
>> >--MM
>> >
>> >
>> >__________________________________________________
>> >To view the archive of this list, go to:
>> >http://lists.interactivehq.org/scripts/lyris.pl?enter=ifwp
>> >
>> >To receive the digest version instead, send a
>> >blank email to ifwp-digest@lists.interactivehq.org
>> >
>> >To SUBSCRIBE forward this message to:
>> >subscribe-IFWP@lists.interactivehq.org
>> >
>> >To UNSUBSCRIBE, forward this message to:
>> >unsubscribe-ifwp@lists.interactivehq.org
>> >
>> >Problems/suggestions regarding this list? Email andy@interactivehq.org.
>> >___END____________________________________________
>
> Regards,
>
>--
>Jeffrey A. Williams
>DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
>Information Network Eng. Group. INEG. INC.
>E-Mail jwkckid1@ix.netcom.com
>
>
>
>