Subject: GA-DIGEST V1 #1520
From: [email-masked] (GA-DIGEST)
To: [email-masked]

GA-DIGEST         Saturday, December 7 2002         Volume 01 : Number 1520

----------------------------------------------------------------------

Date: Fri, 6 Dec 2002 20:26:58 -0500
From: "Cade,Marilyn S - LGA" <[email-masked]>
Subject: RE: [ga] Stolen domains, transfers, WHOIS, audit trails, and systemintegrity

Karl, 
In this post, you are misinterpreting ICANN's ADOPTION of trademark protection developed OUTSIDE of ICANN, WITH ICANN DEVELOPING NEW IP LAWS. I am not a lawyer, but I was there through all of this debate, and played a rather visible and central role in developing the concept. ICANN relies on existing trademark law. 

I am disappointed in this attribution. It's "interesting" but flawed... and not like you.

Marilyn

- -----Original Message-----
From: Karl Auerbach [mailto:[email-masked]]
Sent: Friday, December 06, 2002 4:03 PM
To: George Kirikos
Cc: [email-masked]
Subject: Re: [ga] Stolen domains, transfers, WHOIS, audit trails, and
systemintegrity

On Fri, 6 Dec 2002, George Kirikos wrote:

> The domain industry needs to have some stronger and explicit ICANN
> policies (and not just "registry policies that do not disagree with
> ICANN policies")...
..
> It shouldn't have to be "caveat emptor", etc....we need stronger
> protections, like real estate.

ICANN is not a legislature, neither is it a sheriff nor is it a judge and
jury.

The efforts of the trademark industry to turn ICANN into all of those have 
resulted in many of ICANN's problems.

We should be shrinking ICANN's role, rather than increasing it.

If you look for the protection of rights and if you feel that you have an 
unequal bargaining power to enter into contracts that protect your 
interests, then the place to go is a legislature, not ICANN.

		--karl--

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------------------------------

Date: Fri, 6 Dec 2002 21:40:07 -0500 (EST)
From: "Michael Froomkin - U.Miami School of Law" <[email-masked]>
Subject: RE: [ga] Stolen domains, transfers, WHOIS, audit trails, and systemintegrity

Your first and third sentences below contradict each other.  I believe the
first is correct and the third is not: ICANN does not "rely on existing
trademark law".  Instead, it gives TM holders considerable extra-legal
protection -- more than the law requires, e.g. in the 'landrush' rules.  

In adopting plans "developed outside of ICANN" ICANN consciously
discriminates against everyone without a trademark for the benefit of
those who lobbied for those advantages. There is a good case to be made
that this lobbying of a private corporation (ICANN) by private firms to,
in effect, rig the market is an anti-trust violation, and that the firms
who lobbied ICANN for it are guilty of a combination in restraint of
trade.

Firms who employ persons engaged in such lobbying may wish to consult
counsel, and may wish to reconsider the wisdom of using ICANN to secure
market advantages. Cf.
http://personal.law.miami.edu/~froomkin/articles/icann-antitrust.pdf

A revised version of the article will be published in the Illinois Law
Review early in 2003.

On Fri, 6 Dec 2002, Cade,Marilyn S - LGA wrote:

> Karl, In this post, you are misinterpreting ICANN's ADOPTION of
> trademark protection developed OUTSIDE of ICANN, WITH ICANN DEVELOPING
> NEW IP LAWS. I am not a lawyer, but I was there through all of this
> debate, and played a rather visible and central role in developing the
> concept. ICANN relies on existing trademark law.
> 
> I am disappointed in this attribution. It's "interesting" but
> flawed... and not like you.
> 
> Marilyn
> 
> -----Original Message-----
> From: Karl Auerbach [mailto:[email-masked]]
> Sent: Friday, December 06, 2002 4:03 PM
> To: George Kirikos
> Cc: [email-masked]
> Subject: Re: [ga] Stolen domains, transfers, WHOIS, audit trails, and
> systemintegrity
> 
> 
> On Fri, 6 Dec 2002, George Kirikos wrote:
> 
> > The domain industry needs to have some stronger and explicit ICANN
> > policies (and not just "registry policies that do not disagree with
> > ICANN policies")...
> ...
> > It shouldn't have to be "caveat emptor", etc....we need stronger
> > protections, like real estate.
> 
> ICANN is not a legislature, neither is it a sheriff nor is it a judge and
> jury.
> 
> The efforts of the trademark industry to turn ICANN into all of those have 
> resulted in many of ICANN's problems.
> 
> We should be shrinking ICANN's role, rather than increasing it.
> 
> If you look for the protection of rights and if you feel that you have an 
> unequal bargaining power to enter into contracts that protect your 
> interests, then the place to go is a legislature, not ICANN.
> 
> 		--karl--
> 
> 
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> 

- -- 
		Please visit http://www.icannwatch.org
A. Michael Froomkin   |    Professor of Law    |   [email-masked]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
                        -->It's warm here.<--

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------------------------------

Date: Sat, 7 Dec 2002 03:55:48 +0100 (CET)
From: Marc Schneiders <[email-masked]>
Subject: RE: [ga] Stolen domains, transfers, WHOIS, audit trails, and systemintegrity

On Fri, 6 Dec 2002, at 20:26 [=GMT-0500], Cade,Marilyn S - LGA wrote:

> In this post, you are misinterpreting ICANN's ADOPTION of
> trademark protection developed OUTSIDE of ICANN, WITH ICANN DEVELOPING
> NEW IP LAWS. I am not a lawyer, but I was there through all of this
> debate, and played a rather visible and central role in developing the
> concept. ICANN relies on existing trademark law.

Perhaps this is true for the UDRP rules as they are written. It is
certainly not true if we take the factual application of them into
account. Trademarks are granted protection beyond anything possible under
existing trademark law under the UDRP as applied by NAF and WIPO.

It is not just lack of time that the UDRP revision (due for 2000) still
has to start for real.

- -- 
[02] I will be happy to answer any questions.
http://logoff.org/

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------------------------------

Date: Fri, 6 Dec 2002 19:33:02 -0800 (PST)
From: Karl Auerbach <[email-masked]>
Subject: Re: [ga] Stolen domains, transfers, WHOIS, audit trails, and system integrity

On Fri, 6 Dec 2002, George Kirikos wrote:

> --- Karl Auerbach <[email-masked]> wrote:
> > If you look for the protection of rights and if you feel that you
> > have an 
> > unequal bargaining power to enter into contracts that protect your 
> > interests, then the place to go is a legislature, not ICANN.
> 
> Which legislature? I'm in Canada, the seller might be in Korea, and the
> registry might be in the US, whereas the gaining registrar could be in
> France, with the losing registrar in Germany.

There are many who think that our Internet situation is somehow new and
unique.  It is not. The internet is not the first situation in which
people have had to deal with cross jurisdictional protection of perceived
rights.  In fact, issues such as these have been around since the time of
Columbus.  And solutions have existed since time time of the Medicis.

As a general matter, one obtains judgements from courts where the harm
occured or where the parties are to be found.  And there are established
rules for domestication of foreign judgements.  Of course, domestication
of a foreign judgement may not succeed - In our multicultural world, it is
simply a fact of life that what is considered a wrongful act in one place
may be completely acceptable elsewhere.

There are legitimate complaints to be raised against the time and expense
of these processes.  But let's fix those problems, not try to invent an ad
hoc substitute legal system.  I can guarantee you that many of the reasons 
that the legal system is slow and expensive are that it has had to learn 
to handle all the issues of fairness and external manipulation that are 
sure to surface in any ad hoc substitute.

> I'm all for enforcing contractual rights -- but make it a little bit
> easier...

How?  By doing what ICANN has done?  By creating amateur courts that use
ad hoc jurisprudence to apply law-equivalents created in forums that were
filled only by trademark industry advocates?

One should not forget that the UDRP was railroaded through a partially
formed DNSO that at the time had less than half of its "constituencies"
functioning.  Those who were around at that time are unlikly to forget how
ICANN's president labeled as "arrogant" and "juvenile" those who objected
to the way in which the UDRP was created and decreed in a way reminiscent
of a Roman Imperial Fiat.

> I'd like to be able to say that on December 6, 2002, I have clear title

As Marilyn Cade mentioned in her comment, businesses consider the UDRP 
merely a first strategy and consider the legal system as a the backup.

So, even if you win on the UDRP, you really can't say that you have "clear
title".  ICANN's ad hoc system can not provide finality.  ICANN merely
gives trademark owners two bites at the apple.

The power to decide with finality which rights take precendence over
others is a power of government.  It matters not whether one uses the word
"government" or "private", the exercise of power is the same in either
case.

ICANN was never equipped to be a legislature, and ICANN's elimination of
the public from its policy making forums makes it even less well equipped
to handle a synoptic debate of the issues from all points of view.

I need hardly remind everyone that if ICANN fails, its pyramid scheme of
contracts will collapse into chaos.  And any dispassionate review of facts
and events indicates that there is a real and serious risk that ICANN will
collapse.  That risk of collapse is only increased as ICANN steps further
off the safe ledge of "technical coordination" and seeks to usurp the
kinds of powers that have more traditionally been exercised by sovereign
nations.

	--karl--

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------------------------------

Date: Fri, 06 Dec 2002 22:29:38 -0800
From: Jeff Williams <[email-masked]>
Subject: Re: [ga] Stolen domains, transfers, WHOIS, audit trails, and systemintegrity

Marilyn and all assembly members,

  Firstof all here Merilyn you are not at all addressing Karls comments
below at all.  He made no reference directly or indirectly to ICANN developing
new IP law, but rather IP regulation.  There is a huge difference
between the two.

  Second Marilyn Frommkin's comments are more to the point, and have
been throughout this debate that has been ongoing for sometime and
you played no more of a significant role more than anyone else.
I can however appreciate your desiring to toot your own horn and
AT&T's, so to speak...   That form of indirect lobbying you are of course
well known for with respect to Special Interest Group activities...  Given
AT&T's lackluster stock and bond performance of late, this is of course
understandable on several business levels and longer term financial
considerations...

  It would be much more appreciated I believe that such misrepresentations
attributed to Karl incorrectly as I have pointed out here and others,
including Michael Froomkin did in his response, be directed more towards
the substance of the issue in consideration or being discussed.

  Indeed as the supreme court recently ruled that they "Cybersquatter
Act" as an act attributed to making new law from whole cloth, and
I believe Kathy Klienman once pointed out early on in this debate,
now has been thrown out, and properly so.  Extra protections for
TM holders via this ill conceived law were than and remain
inappropriate and extra legal as and adjunct to the Lanham act
and indeed may infringe upon restraint of trade.  Same has
also been shown to apply to the UDRP as well.  First use
is one of the hallmarks of Trademark law the the UDRP
and the "Cybersquating Act" sought to thwart extra legally...
The supreme court acted therefore properly in tossing the
"Cybersquating Act" back to whence if came...

Cade,Marilyn S - LGA wrote:

> Karl,
> In this post, you are misinterpreting ICANN's ADOPTION of trademark protection developed OUTSIDE of ICANN, WITH ICANN DEVELOPING NEW IP LAWS. I am not a lawyer, but I was there through all of this debate, and played a rather visible and central role in developing the concept. ICANN relies on existing trademark law.
>
> I am disappointed in this attribution. It's "interesting" but flawed... and not like you.
>
> Marilyn
>
> -----Original Message-----
> From: Karl Auerbach [mailto:[email-masked]]
> Sent: Friday, December 06, 2002 4:03 PM
> To: George Kirikos
> Cc: [email-masked]
> Subject: Re: [ga] Stolen domains, transfers, WHOIS, audit trails, and
> systemintegrity
>
> On Fri, 6 Dec 2002, George Kirikos wrote:
>
> > The domain industry needs to have some stronger and explicit ICANN
> > policies (and not just "registry policies that do not disagree with
> > ICANN policies")...
> ..
> > It shouldn't have to be "caveat emptor", etc....we need stronger
> > protections, like real estate.
>
> ICANN is not a legislature, neither is it a sheriff nor is it a judge and
> jury.
>
> The efforts of the trademark industry to turn ICANN into all of those have
> resulted in many of ICANN's problems.
>
> We should be shrinking ICANN's role, rather than increasing it.
>
> If you look for the protection of rights and if you feel that you have an
> unequal bargaining power to enter into contracts that protect your
> interests, then the place to go is a legislature, not ICANN.
>
>                 --karl--
>
> --
> This message was passed to you via the [email-masked] list.
> Send mail to [email-masked] to unsubscribe
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Regards,
- --
Jeffrey A. Williams
Spokesman for INEGroup - (Over 127k members/stakeholders strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail [email-masked]
Contact Number: 214-244-4827 or 972-244-3801
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208

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------------------------------

Date: Fri, 6 Dec 2002 22:35:25 -0800 (PST)
From: George Kirikos <[email-masked]>
Subject: Re: [ga] Stolen domains, transfers, WHOIS, audit trails, and system integrity

Hello,

- --- Karl Auerbach <[email-masked]> wrote:
> On Fri, 6 Dec 2002, George Kirikos wrote:
> > I'm all for enforcing contractual rights -- but make it a little
> bit
> > easier...
> 
> How?  By doing what ICANN has done?  By creating amateur courts that
> use
> ad hoc jurisprudence to apply law-equivalents created in forums that
> were
> filled only by trademark industry advocates?

My post was not about UDRP and trademarks (it said *SAVE* for those
issues, i.e. excluding them). My point was that the system is flawed at
present if one is unable to have unequivocal proof of ownership of the
domain, and have unequivocal transfers which are well-documented. The
same problems exist with physical goods (e.g. someone might sell you a
car that is stolen), but the issues are more complex for the
non-physical world, and the poor procedures and lack of audit trails.
For real-estate, there's much better documentation. Some domains are
worth more than houses....

If XYZ.com was hijacked tomorrow, how would the owners of XYZ.com have
*proven* that they owned it today? The losing registrar's word? The
gaining registrar would have a legitimate client who might say that
they received the domain legitimately....let's make the chain of
ownership stronger, and transparent, as it's not like that today. Now
that .com is stabilizing, most of the action will be in "churn", not
initial registrations, and if those movements aren't safe then it
creates greater risk for the market participants.

[lots of UDRP comments cut]
 
I didn't raise the issue of UDRP, as I wanted to keep the analysis
simple, just pure transfers, ownership, and thefts (excluding bad UDRP
decisions that are over-reaching).

Sincerely,

George Kirikos
http://www.kirikos.com/
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Date: Sat, 7 Dec 2002 02:23:03 -0500
From: Allan Liska <[email-masked]>
Subject: Re: [ga] Stolen domains, transfers, WHOIS, audit trails, and system integrity

- -----BEGIN PGP SIGNED MESSAGE-----
Hash: MD5

Hello George,

Saturday, December 7, 2002, 1:35:25 AM, you wrote:

GK> If XYZ.com was hijacked tomorrow, how would the owners of XYZ.com have
GK> *proven* that they owned it today? The losing registrar's word? The
GK> gaining registrar would have a legitimate client who might say that
GK> they received the domain legitimately....let's make the chain of
GK> ownership stronger, and transparent, as it's not like that today. Now
GK> that .com is stabilizing, most of the action will be in "churn", not
GK> initial registrations, and if those movements aren't safe then it
GK> creates greater risk for the market participants.

While I completely agree with your statement, wouldn't the losing
registrar have a backup of their database?  This should be enough to
show they had ownership of the domain?  Perhaps ICANN should include
provisions in their registrar agreement for database backups?  There
are standards of backup required for data to be admitted as evidence
in court, ICANN can hold registrars to the same level?

allan
- - --
Allan Liska
[email-masked]
http://www.allan.org

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------------------------------

Date: Sat, 07 Dec 2002 02:27:14 -0800
From: Jeff Williams <[email-masked]>
Subject: Re: [ga] Stolen domains, transfers, WHOIS, audit trails, and system integrity

Allan and all assembly members,

Allan Liska wrote:

> -----BEGIN PGP SIGNED MESSAGE-----
> Hash: MD5
>
> Hello George,
>
> Saturday, December 7, 2002, 1:35:25 AM, you wrote:
>
> GK> If XYZ.com was hijacked tomorrow, how would the owners of XYZ.com have
> GK> *proven* that they owned it today? The losing registrar's word? The
> GK> gaining registrar would have a legitimate client who might say that
> GK> they received the domain legitimately....let's make the chain of
> GK> ownership stronger, and transparent, as it's not like that today. Now
> GK> that .com is stabilizing, most of the action will be in "churn", not
> GK> initial registrations, and if those movements aren't safe then it
> GK> creates greater risk for the market participants.
>
> While I completely agree with your statement, wouldn't the losing
> registrar have a backup of their database?

  No reason why this could not be done.  And it should be.  Some
registrars do have such backups of their registrar database(s)...

> This should be enough to
> show they had ownership of the domain?

  The registrar does not "Own" any registration.  The registrant should.
But in reality the registry owns the Domain Name...

> Perhaps ICANN should include
> provisions in their registrar agreement for database backups?

  They should yes.  But the problem here is that such would require
ICANN to have the ability to enforce such provisions.  ICANN
has shown clearly that it has trouble a times keeping it's web pages
available or up to date.  The ICANN staff has on a number of occasions
stated clearly that it cannot or will not enforce it's own contractual
RAA provisions already has.  ICANN has shown it will abide
by it's contractual requirements in the White Paper and the MoU.
How than, can any reasonable person expect ICANN to adequately
enforce and of it's own RAA provisions?

>  There
> are standards of backup required for data to be admitted as evidence
> in court, ICANN can hold registrars to the same level?

  Again ICANN has shown that it cannot even abide by it's own
contract agreements in the White Paper and MoU...  How than
can one reasonably expect the ICANN Staff or BoD oversee
and enforce it's own RAA contracts with registrars?

>
>
> allan
> - --
> Allan Liska
> [email-masked]
> http://www.allan.org
>
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>
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Regards,

- --
Jeffrey A. Williams
Spokesman for INEGroup - (Over 127k members/stakeholders strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail [email-masked]
Contact Number: 214-244-4827 or 972-244-3801
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208

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Date: Sat, 07 Dec 2002 12:42:09 +0100
From: Vittorio Bertola <[email-masked]>
Subject: Re: [ga] Stolen domains, transfers, WHOIS, audit trails, and system integrity

On Sat, 7 Dec 2002 02:23:03 -0500, you wrote:

>While I completely agree with your statement, wouldn't the losing
>registrar have a backup of their database?  This should be enough to
>show they had ownership of the domain?  Perhaps ICANN should include
>provisions in their registrar agreement for database backups?  There
>are standards of backup required for data to be admitted as evidence
>in court, ICANN can hold registrars to the same level?

Perhaps registrars should simply be required to keep escrowed copies
of backups made, say, every month. In this way you would have third
parties able to certify the ownership of a domain at a given date. I'm
not sure about costs, but I imagine they are quite reasonable.

More generally speaking, I think that there is a significant work of
revision of the RAA to be done to accommodate for this and other
issues. Of course no one wants to increase requirements for registrars
too much (otherwise the cost increase would end up on consumers) but
certainly there has to be more attention to this problem.
- -- 
vb.            [Vittorio Bertola - v.bertola [a] bertola.eu.org]<---
- -------------------> http://bertola.eu.org/ <-----------------------
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Date: Sat, 07 Dec 2002 10:17:00 -0500
From: Dan Steinberg <[email-masked]>
Subject: Re: [ga] Stolen domains, transfers, WHOIS, audit trails, and systemintegrity

Ummmmmmm Marilyn,

I have to disagree with you here.  This IS outside IP law. The rules 
adopted give TM holders singificant protection that goes beyond existing 
law. ummmmm...that is the whole point of it!  To say ICANN relies on 
existing trademark law...when existing trademark law was obviously 
perceived as insufficient in the first place for the needs of TM 
holders...well...I would call it 'interesting' but flawed.....

Cade,Marilyn S - LGA wrote:

>Karl, 
>In this post, you are misinterpreting ICANN's ADOPTION of trademark protection developed OUTSIDE of ICANN, WITH ICANN DEVELOPING NEW IP LAWS. I am not a lawyer, but I was there through all of this debate, and played a rather visible and central role in developing the concept. ICANN relies on existing trademark law. 
>
>I am disappointed in this attribution. It's "interesting" but flawed... and not like you.
>
>Marilyn
>
>-----Original Message-----
>From: Karl Auerbach [mailto:[email-masked]]
>Sent: Friday, December 06, 2002 4:03 PM
>To: George Kirikos
>Cc: [email-masked]
>Subject: Re: [ga] Stolen domains, transfers, WHOIS, audit trails, and
>systemintegrity
>
>
>On Fri, 6 Dec 2002, George Kirikos wrote:
>
>  
>
>>The domain industry needs to have some stronger and explicit ICANN
>>policies (and not just "registry policies that do not disagree with
>>ICANN policies")...
>>    
>>
>..
>  
>
>>It shouldn't have to be "caveat emptor", etc....we need stronger
>>protections, like real estate.
>>    
>>
>
>ICANN is not a legislature, neither is it a sheriff nor is it a judge and
>jury.
>
>The efforts of the trademark industry to turn ICANN into all of those have 
>resulted in many of ICANN's problems.
>
>We should be shrinking ICANN's role, rather than increasing it.
>
>If you look for the protection of rights and if you feel that you have an 
>unequal bargaining power to enter into contracts that protect your 
>interests, then the place to go is a legislature, not ICANN.
>
>		--karl--
>
>
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Date: Sat, 7 Dec 2002 08:37:18 -0800 (PST)
From: George Kirikos <[email-masked]>
Subject: Re: [ga] Stolen domains, transfers, WHOIS, audit trails, and system integrity

Hi Allan,

- --- Allan Liska <[email-masked]> wrote:
> While I completely agree with your statement, wouldn't the losing
> registrar have a backup of their database?  This should be enough to
> show they had ownership of the domain?  Perhaps ICANN should include
> provisions in their registrar agreement for database backups?  There
> are standards of backup required for data to be admitted as evidence
> in court, ICANN can hold registrars to the same level?

That would be a good start, although ideally one would want to make it
transparent enough to not have to go to court -- i.e. how do we obviate
the need for court, and allow it to be transparent before doing
transactions?

Another way to accomplish this is to have a "WhoTransfers" database
(for lack of a better term), perhaps on a paid basis (a few dollars per
lookup), or free. When an ownership change takes place, the transaction
would be recorded, including things like who the original registrant
was, who the new registrant is, and how authentication of the transfer
took place. If ICANN (or even Verisign registry, who is hopefully
reading) made this available, *AND* made it authoritative and
irrevokable for transfers/ownership changes (e.g. escrow companies
could rely upon it, as could others who are engaging in domain
transactions), this would go a long way to reducing fraud, and
increasing "trust". There would be transparency to the system. A
complete audit trail would then be available, and folks would be able
to say definitively "Yes, I *am* the owner of XYZ.com" as of this date.
This database should also show whether a transfer/sale is *Pending*, to
not allow fraudsters to transact for domains that were already pending
to be transferred to someone else.

If you saw that a domain went from ownership by IBM, to a Malaysian
registrant, and then to an Indonesian registrant, and then back to a US
registrant, this would prevent the US registrant from claiming "Oh, I
acquired the domain from IBM!". In the case of that exw.com domain that
I had been involved with (and seems to have a questionable chain of
ownership, changing hands 3 or 4 times in the past week), the
marketplace would be suitably informed of the risks.

Such a database could (and probably should) also include deletions
information (e.g. domain XYZ.com deleted on September 5, 2002 for
reason ABC (e.g. non-payment, normal expiry, etc.), and then
re-registered on September 7th. Then, a complete ownership ownership
history could be created.

Sincerely,

George Kirikos
http://www.kirikos.com/
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Date: Sat, 7 Dec 2002 15:19:19 -0500
From: "Cade,Marilyn S - LGA" <[email-masked]>
Subject: RE: [ga] Stolen domains, transfers, WHOIS, audit trails, andsystemintegrity

Michael, I know your views, but I've never heard your views on how the rights of the individual might be put at risk when they unknowingly infringe... and therefore can't use a name because they blundered into a territory where someone has rights..

... the purpose of putting up a site is USUALLY to communicate with the public. 
what advantage is it to the user when they register a name which someone disputes and they are tied up in a UDRP or a court action...

... MOST users want to move quickly to getting a name, getting a web site, and doing "business/communications"... and getting delayed is a problem to them.

I know, I know,.... as an academic, you want to and need to also protect all other possible avenues/perspectives, etc.

but consider the "average" user... wanting to merely get to work, so to speak...
I've never heard you on that topic... only on the adversarial side of the equation.

It's interesting, but perhaps someone else might speak on the aspect of those who want to avoid conflicts and merely know that they can register a name, use it, and not have to fight over it...

Probably depends on the agenda of the registrant, of course.  :0)

I'm not saying that there aren't legitimate conflicts. That is why we supported the UDRP. It  might not be prefect, but it offered a lower cost solution for the disputed names for individuals and small organizations/entities, not just corporations. 

- -----Original Message-----
From: Michael Froomkin - U.Miami School of Law
[mailto:[email-masked]]
Sent: Friday, December 06, 2002 9:40 PM
To: Cade,Marilyn S - LGA
Cc: Karl Auerbach; George Kirikos; [email-masked]
Subject: RE: [ga] Stolen domains, transfers, WHOIS, audit trails,
andsystemintegrity

Your first and third sentences below contradict each other.  I believe the
first is correct and the third is not: ICANN does not "rely on existing
trademark law".  Instead, it gives TM holders considerable extra-legal
protection -- more than the law requires, e.g. in the 'landrush' rules.  

In adopting plans "developed outside of ICANN" ICANN consciously
discriminates against everyone without a trademark for the benefit of
those who lobbied for those advantages. There is a good case to be made
that this lobbying of a private corporation (ICANN) by private firms to,
in effect, rig the market is an anti-trust violation, and that the firms
who lobbied ICANN for it are guilty of a combination in restraint of
trade.

Firms who employ persons engaged in such lobbying may wish to consult
counsel, and may wish to reconsider the wisdom of using ICANN to secure
market advantages. Cf.
http://personal.law.miami.edu/~froomkin/articles/icann-antitrust.pdf

A revised version of the article will be published in the Illinois Law
Review early in 2003.

On Fri, 6 Dec 2002, Cade,Marilyn S - LGA wrote:

> Karl, In this post, you are misinterpreting ICANN's ADOPTION of
> trademark protection developed OUTSIDE of ICANN, WITH ICANN DEVELOPING
> NEW IP LAWS. I am not a lawyer, but I was there through all of this
> debate, and played a rather visible and central role in developing the
> concept. ICANN relies on existing trademark law.
> 
> I am disappointed in this attribution. It's "interesting" but
> flawed... and not like you.
> 
> Marilyn
> 
> -----Original Message-----
> From: Karl Auerbach [mailto:[email-masked]]
> Sent: Friday, December 06, 2002 4:03 PM
> To: George Kirikos
> Cc: [email-masked]
> Subject: Re: [ga] Stolen domains, transfers, WHOIS, audit trails, and
> systemintegrity
> 
> 
> On Fri, 6 Dec 2002, George Kirikos wrote:
> 
> > The domain industry needs to have some stronger and explicit ICANN
> > policies (and not just "registry policies that do not disagree with
> > ICANN policies")...
> ...
> > It shouldn't have to be "caveat emptor", etc....we need stronger
> > protections, like real estate.
> 
> ICANN is not a legislature, neither is it a sheriff nor is it a judge and
> jury.
> 
> The efforts of the trademark industry to turn ICANN into all of those have 
> resulted in many of ICANN's problems.
> 
> We should be shrinking ICANN's role, rather than increasing it.
> 
> If you look for the protection of rights and if you feel that you have an 
> unequal bargaining power to enter into contracts that protect your 
> interests, then the place to go is a legislature, not ICANN.
> 
> 		--karl--
> 
> 
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- -- 
		Please visit http://www.icannwatch.org
A. Michael Froomkin   |    Professor of Law    |   [email-masked]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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------------------------------

Date: Sat, 7 Dec 2002 15:32:39 -0500
From: "Johnson, David" <[email-masked]>
Subject: RE: [ga] Stolen domains, transfers, WHOIS, audit trails, andsystemintegrity

Marilyn --

How would you feel about the following two steps to reduce conflict?

1. pass a law making clear that failure of a tm holder to "police" it's mark, insofar as the mark is reflected in some way in a domain name, is not a waiver that undermines any regular trademark rights.
2. strong presumption (absent showing of actual confusion of real customers) that a domain name may not be challenged after it has been in use for some substantial period (a year or two)

David Johnson

- -----Original Message-----
From: Cade,Marilyn S - LGA [mailto:[email-masked]]
Sent: Saturday, December 07, 2002 3:19 PM
To: Michael Froomkin - U.Miami School of Law
Cc: Karl Auerbach; George Kirikos; [email-masked]
Subject: RE: [ga] Stolen domains, transfers, WHOIS, audit trails,
andsystemintegrity

Michael, I know your views, but I've never heard your views on how the rights of the individual might be put at risk when they unknowingly infringe... and therefore can't use a name because they blundered into a territory where someone has rights..

... the purpose of putting up a site is USUALLY to communicate with the public. 
what advantage is it to the user when they register a name which someone disputes and they are tied up in a UDRP or a court action...

... MOST users want to move quickly to getting a name, getting a web site, and doing "business/communications"... and getting delayed is a problem to them.

I know, I know,.... as an academic, you want to and need to also protect all other possible avenues/perspectives, etc.

but consider the "average" user... wanting to merely get to work, so to speak...
I've never heard you on that topic... only on the adversarial side of the equation.

It's interesting, but perhaps someone else might speak on the aspect of those who want to avoid conflicts and merely know that they can register a name, use it, and not have to fight over it...

Probably depends on the agenda of the registrant, of course.  :0)

I'm not saying that there aren't legitimate conflicts. That is why we supported the UDRP. It  might not be prefect, but it offered a lower cost solution for the disputed names for individuals and small organizations/entities, not just corporations. 

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------------------------------

End of GA-DIGEST V1 #1520
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