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Username: Gregory W. Krajewski
Date/Time: Fri, November 3, 2000 at 5:54 AM GMT
Browser: Microsoft Internet Explorer V5.01 using Windows 98
Score: 5
Subject: ICANN:   The Sunrise Proposal, is like the TAX issue on the net - Let the system grow first!

Message: 		 

 
TO ICANN: 

I am an advocate for cooperation.  I think we need to work together to create an environment that protects TM rights, and as well promote growth and innovation. 

I hardly think creating a Sunrise Proposal will do that, and here is why.....

1.  Creates a protected status framework in the DNS...(not a good idea in these early stages)....

2.  Will cost registries their current immunity from litigation as it is right now they cannot be sued for selling domain names if they are TM'd....It is up to the registrant to make sure what they register is not TM'd.  The reason for this is because the courts do not want to slow the speed of the internet's growth... Registries would be wide open for lawsuits on this very issue, which would shut down a lot of these companies....Then who could afford to remain..Probably NSI...hmm

3.  PCIA's Sunrise plan, includes several interesting items, to include a "TM Portal" where TM holders can challenge each other, for the same TM'd domain, after the Sunrise period, more challenges can occur through UDRP....If you add up all the extra costs, guess who get's left out of this process...THE consumer...who also would like to participate in this digital economy...The current digital divide would only worsen under a system that clearly relies heavily on money....I can guarantee under this plan, registries would almost certainly have to raise their fees, as insurance coverage they carry now would skyrocket ...

4.  A Sunrise proposal (of any kind) creates a special group....Don't confuse TM protection with "automatic" rights...ONE ALWAYS has to defend their TM...in a court of law!!!....I find it interesting coming from PCIA that they describe the "URDP" method as Ad hoc, "After the Fact" policing methods with regards to TM protection, yet after after the Sunrise period, they don't mind using it... I have a simple question:  What happens to the "Sunrise" domain name, once a company goes defunct???  Technically, that company is now infringing on someone else’s TM under a different class...Also what happens if let say, ICANN did do a "Sunrise" and it bombed?? Clearly as legal experts, you would say ICANN would have to do it again, if they wished to add more TLD's in the future...it's called precedence....in this case with respect to TM law...which clearly is out of the purview of ICANN's mission (original one)..

5.  The sunrise proposal would in a sense create a TM internet...as once everyone figured out that was the only way you were going to keep your domain was to TM it (which poorer individuals would have a hard time doing--digital divide)... the onslaught at the USPT&O office would begin...And yes that is happening now...in anticipation of this Sunrise Proposal...I must say, I had to chuckle at PCIA's, reference quotation at the end of post:

>>(1) July 16, 2000 is the date ICANN announced its new TLD policy.  We have selected this date to avoid giving Sunrise benefits to those who sought bad faith trademark registrations in anticipation of a possible Sunrise period....<<<

How would you define "Bad faith" trademark registrations???
The pattern here is to put "bad faith" in front of words to make it appear illegal....i.e "bad faith" domain registrations...I really do feel the Intellectual Property community does need to be heard, it's just their approach...They don't want consensus...(In my opinion)...I think if you look at the record there was none on any kind of Sunrise proposal...Yet this group (and IPC) is insinuating ICANN would like this to be a part of the new TLD process....What will happen I think is that the IPC will overstep its bounds trying to protect a legitimate source of goods on the internet...In doing so there will be a severe backlash...history is always unkind...All that has to happen is for it (the process) to appear one-sided with respect to the DNS and it will do two things..1) Ruin ICANN or 2) Split the DNS...

These are my reasons why any Sunrise Proposal should be rejected...Continue with UDRP (as a mechnism--as it is on shaky ground, but seems to be accepted) and a "volunteer" return policy by registrants who have infringed....Which IOD (dot WEB Registry)
advocates..Make it easy for them to do it...if you think about it..Why hasn't NSI created an online system where you could (yourself) transfer a domain (within your lifetime) to a person who
requests it .  A payment system could then make it also just as easy for the requesting party to pay the "infringer" the $35.00 fee or whatever.  With the US Anti-CyberSquat Act, this may be the better option (if it is made easy, and can be done securely)...within a few clicks (not weeks) the domain would be transferred to the "rightful" TM owner ...However, maybe someone else wishes to prove they should have a right to it (we opened this pandora's box and we are now stuck---let's not open another one)...That new company can request a “special transfer” from the domain holder or take it through WIPO using UDRP principles.....Again, this seems to be a better approach and less costly...Anytime you can do a "out of court" settlement, all sides win.  However if the issue cannot be resolved....A judge presideing in a court of law can make a ruling (and the ability to appeal is involved here)...

Anyways, I hope that I have gotten across my point...TM's are not a birth right...Neither is intellectual property...It is something that is a burden on the owners and in return they should reap the benefits!!!...TO assert their claims...TO be fair, those assertions have be be aired in a court of law...whereby a legal entity, either negates those "claims" or upholds them....TO make it "easy" in asserting those rights (Sunrise Proposal)is tearing into the legal fabric of the United States and I am sure other democracies...ICANN should not be in the middle of this...Any new registry should not be in the middle of this...

The TM lobby needs to look at the DNS differently then it does the offline world...You must grow with it, or as they say, get left behind...Let it have a chance to breathe (the DNS)...the US congress has chosen to lay off taxing goods on the internet until 2006...they are basically let the "system" have a chance to get a foothold...Taxes on the internet may be different than TM domain names, however any "mechanism", whether it be taxes or the Sunrise Proposal, I think at this stage would be harmful...

For the internet is  different in many ways, than the offline world...with the DNS we have to share it....whether you take that to mean allowing  new competition at the registry level, or
allowing someone to not have to TM a domain to own it...I am not sure...keep that in mind...what we do NOW...will forever impact our progress and growth on the internet...By allowing competition, some TM protection (obvious cases) without Sunrise will do just
that!!!
........


Gregory W. Krajewski
gkrajews@mato.com
      
             
     

       
     
 

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