Subject: GA-DIGEST V1 #1521
From: [email-masked] (GA-DIGEST)
To: [email-masked]

GA-DIGEST          Monday, December 9 2002          Volume 01 : Number 1521

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

Date: Sat, 7 Dec 2002 16:06:18 -0500
From: "elliot noss" <[email-masked]>
Subject: Re: [ga] Stolen domains, transfers, WHOIS, audit trails, andsystemintegrity

David:

What a great suggestion. It makes much to much sense to actually be
considered by politicians. They are too busy saving my children from the
dangers of the Internet by passing the .kids.us legislation!

Regards

- ----- Original Message -----
From: "Johnson, David" <[email-masked]>
To: "Cade,Marilyn S - LGA" <[email-masked]>; "Michael Froomkin - U.Miami
School of Law" <[email-masked]>
Cc: "Karl Auerbach" <[email-masked]>; "George Kirikos"
<[email-masked]>; <[email-masked]>
Sent: Saturday, December 07, 2002 3:32 PM
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.
>
>
> --
> This message was passed to you via the [email-masked] list.
> Send mail to [email-masked] to unsubscribe
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>

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

Date: Sat, 7 Dec 2002 16:41:50 EST
From: [email-masked]
Subject: [ga] North American Regional At-Large Organization

Dear all,

I have put up a website to facilitate and track the establishment of a North 
American At-Large Regional Organization.  It's temporary home (until proper 
hosting is established) is at this URL:  
http://www.angelfire.com/folk/dns/index.htm

best regards,
Danny
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------------------------------

Date: Sat, 07 Dec 2002 16:46:51 -0800 (PST)
From: "Tim Burlee, INEG Canada" <[email-masked]>
Subject: Re: [ga] North American Regional At-Large Organization

Dear Danny, fellow members and other listreaders,

Let me say congratulations on starting this North
American chapter.  You have our full support, and I am
anxious to join and start contributing.  One question I
have, how involved is Karl in this endeavor?

Thanks very much

Regards,
- --
Tim Burlee
INEGroup Canada member
Domain Registration and Hosting Division
INEGroup - (Over 127k members/stakeholders strong!)
E-Mail [email-masked]
Contact Number: 416-763-6363 ***NEW PHONE***
Address:1290 Central Pkwy W, Mississauga, Ontario

[email-masked] wrote:

> 
> Dear all,
> 
> I have put up a website to facilitate and track the
> establishment of a North 
> American At-Large Regional Organization.  It's
> temporary home (until proper 
> hosting is established) is at this URL:  
> <a
href="http://mail.canada.com/jump/http://www.angelfire.com/folk/dns/index.htm">http://www.angelfire.com/folk/dns/index.htm</a>
> 
> best regards,
> Danny
> --
> This message was passed to you via the [email-masked]
list.
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> Archives at <a
href="http://mail.canada.com/jump/http://www.dnso.org/archives.html">http://www.dnso.org/archives.html</a>

Regards,
- --
Tim Burlee
INEGroup Canada member
Domain Registration and Hosting Division
INEGroup - (Over 127k members/stakeholders strong!)
E-Mail [email-masked]
Contact Number: 416-763-6363 ***NEW PHONE***
Address:1290 Central Pkwy W, Mississauga, Ontario
__________________________________________________________
Get your FREE personalized e-mail at http://www.canada.com
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------------------------------

Date: Sat, 7 Dec 2002 20:12:52 EST
From: [email-masked]
Subject: Re: [ga] North American Regional At-Large Organization

Tim,

Thank you for your interest.  I welcome all participants in this endeavor.  
To answer your question, the only people aware that I was planning on 
launching this site were my fellow members in the New York chapter of the 
Internet Society.  Should Karl choose to involve himself in this project at 
some point, his contributions will be welcomed.  

Best regards,
Danny
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------------------------------

Date: Sat, 07 Dec 2002 22:59:36 -0800
From: Jeff Williams <[email-masked]>
Subject: Re: [ga] Stolen domains, transfers, WHOIS, audit trails, andsystemintegrity

Marilyn and all assembly members,

Cade,Marilyn S - LGA wrote:

> 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.

  A little sniping here Merilyn?  But yes Michael not only or just as and academic
but as a Lawyer and a Registrant another registrants, have this same need,
or more aptly put, concern also...

>
>
> 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.

  The average user doesn't also want to worry about possible legal action or
UDRP filing either.  But maybe you can describe what the "average user", as
you put it, is??  I doubt that you can.  Hence this seems to be more sniping
rather than an attempt to get at an actual potential problem...

>
>
> 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...

  It is simple.  First come first serve...  Of course the BC and IPC have fought
hard against this long standing practice.  Do you recall First use TM
provisions?  Do you recall that a TM is not equal to a Domain Name?

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

  And the converse depends on the Telecom hyped TM Special interest
lobbyists.  >;)

>
>
> I'm not saying that there aren't legitimate conflicts. That is why we supported the UDRP.

  Nonsense.  The UDRP was supported, and in fact the idea of TM lobbyists
along with other IPC special interests...  That's documented Marilyn.  Please
don't again try to rewrite history...

> 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.

  Low cost?  For whom?  For small business registrants?  No, it was a low cost
way of big business especially the Telecom and IPC lobby way of stealing
legitimate domain names from the rightful, first registered, registrant...

>
>
> -----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--
> >
> >
> > --
> > This message was passed to you via the [email-masked] list.
> > Send mail to [email-masked] to unsubscribe
> > ("unsubscribe ga" in the body of the message).
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> >
> > --
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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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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: Sun, 8 Dec 2002 00:05:04 -0800 (PST)
From: Karl Auerbach <[email-masked]>
Subject: RE: [ga] Stolen domains, transfers, WHOIS, audit trails, andsystemintegrity

On Sat, 7 Dec 2002, Johnson, David wrote:

> 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.

You mean like what I suggested at a presentation at the annual meeting of 
the California Bar association about two months ago?:

  We could create a new 15 USC §1130 that says something like:

    No holder of a US Federally registered trademark shall be placed at 
    risk of losing that mark because that person did not register that
    mark in any or all domain name registries that might be available
    for such registration.

	--karl--

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Date: Sun, 8 Dec 2002 00:56:36 -0800
From: "Asaad Y. Alnajjar - Millennium Inc." <[email-masked]>
Subject: Re: [ga] Stolen domains, transfers, WHOIS, audit trails,andsystemintegrity

Karl

I think that your suggestion in regards "US Federally registered trademark " is
not practical and can not be implemented.
For example, as far as I know, say the trademark "ABCD" that can be registered
as follow:
A) ABCD clothing line by party one
B) ABCD restaurants by party two
C) ABCD cars by party three
D) ABCD computer by party four
E) ABCD magazine vy party five
F) and so forth

Hence which party from above should get ABCD.com keeping in mind all of them
have a valid registered trademark in their prospective line of work?

Unfortunately, with domains first come first serve remains as the only practical
option for now till we find otherwise.

Asaad Alnajjar
CEO Millennium Inc.
Los Angeles, CA, USA

- ----- Original Message -----
From: "Karl Auerbach" <[email-masked]>
To: "Johnson, David" <[email-masked]>
Cc: "Michael Froomkin - U.Miami School of Law" <[email-masked]>;
<[email-masked]>
Sent: Sunday, December 08, 2002 12:05 AM
Subject: RE: [ga] Stolen domains, transfers, WHOIS, audit
trails,andsystemintegrity

> On Sat, 7 Dec 2002, Johnson, David wrote:
>
> > 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.
>
> You mean like what I suggested at a presentation at the annual meeting of
> the California Bar association about two months ago?:
>
>   We could create a new 15 USC §1130 that says something like:
>
>     No holder of a US Federally registered trademark shall be placed at
>     risk of losing that mark because that person did not register that
>     mark in any or all domain name registries that might be available
>     for such registration.
>
> --karl--
>
>
> --
> This message was passed to you via the [email-masked] list.
> Send mail to [email-masked] to unsubscribe
> ("unsubscribe ga" in the body of the message).
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>

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

Date: Sun, 08 Dec 2002 21:49:45 +1300
From: Joop Teernstra <[email-masked]>
Subject: RE: [ga] Stolen domains, transfers, WHOIS, audit trails, andsystemintegrity

At 09:05 p.m. 8/12/2002, Karl Auerbach wrote:

>   We could create a new 15 USC §1130 that says something like:
>
>     No holder of a US Federally registered trademark shall be placed at
>     risk of losing that mark because that person did not register that
>     mark in any or all domain name registries that might be available
>     for such registration.

Dear Karl,

This would imply that the persons who register trademarks outside the US 
jurisdiction would be fair game and their trademarks would assume second 
class status.

I'm sure that wouldn't be your intention.

- -joop-

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Date: Sun, 8 Dec 2002 09:10:01 -0500
From: "elliot noss" <[email-masked]>
Subject: Re: [ga] Stolen domains, transfers, WHOIS, audit trails,  andsystemintegrity

In the interest of helping Karl while he is hopefully still sleeping,
his/David's suggestion says neither what Asaad or Joop infer. It merely says
that as a trademark holder you will not be PREJUDICED if you DO NOT register
a domain name in any and all namespaces making the whole issue of defensive
registrations nearly insignificant.

It says nothing about which trademark holder may or may not get a domain
name. In fact it makes the value of first-come-first-served much greater and
makes it more likely that UDRP jurisprudence can evolve in an appropriate
way.

As for it dealing with the US Joop, that is where Karl lives. I have no
doubt if he would have suggested the Dutch (I think that is where you are
from if I recall) parliament enact such legislation we would still be
reading about American hegemony and how he should stick to his own affairs,
etc.. He was suggesting cleaning up his own backyard. I would do the same
for Canada. If you like the idea, forward it at home.

It says absolutely nothing about the priorities of competing national marks.

Regards
Elliot Noss

- ----- Original Message -----
From: "Joop Teernstra" <[email-masked]>
To: "Karl Auerbach" <[email-masked]>; "Johnson, David"
<[email-masked]>
Cc: "Michael Froomkin - U.Miami School of Law" <[email-masked]>;
<[email-masked]>
Sent: Sunday, December 08, 2002 3:49 AM
Subject: RE: [ga] Stolen domains, transfers, WHOIS, audit trails,
andsystemintegrity

> At 09:05 p.m. 8/12/2002, Karl Auerbach wrote:
>
>
> >   We could create a new 15 USC §1130 that says something like:
> >
> >     No holder of a US Federally registered trademark shall be placed at
> >     risk of losing that mark because that person did not register that
> >     mark in any or all domain name registries that might be available
> >     for such registration.
>
> Dear Karl,
>
> This would imply that the persons who register trademarks outside the US
> jurisdiction would be fair game and their trademarks would assume second
> class status.
>
> I'm sure that wouldn't be your intention.
>
>
> -joop-
>
> --
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> Send mail to [email-masked] to unsubscribe
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>

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Date: Sun, 8 Dec 2002 15:51:41 -0500 (EST)
From: "Michael Froomkin - U.Miami School of Law" <[email-masked]>
Subject: RE: [ga] Stolen domains, transfers, WHOIS, audit trails, andsystemintegrity

I note that you are changing the subject rather than responding.  Why is
that?  Is it because I'm right?  You may know my views on things, but I
certainly don't know how you can make the first and third sentences of
the post I responded to both seem accurate at the same time.  I think they
are contradictory.

But, since you ask about these new things....

On Sat, 7 Dec 2002, Cade,Marilyn S - LGA wrote:

> 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..

I don't understand the hypo.  If the individual use is non-commercial, the
indivdual is not an infringer, so there is no issue: their use is legal.  
Those are the interests, oft trampeled on, that I care most about.

If the use is commercial, the use is not infringing unless the name is
very famous (subject to correction in the pending Victoria's Secret case)
or the use is in the same line of goods in the relevant
jurisdiction/terriotry. In neither of those cases am I overyly sympathetic
to the poor small business person who should have done a trademark search.
Those are the rules of the game.  I am concerned about claims that many
marks should be seen as famous enought to command federal dilution
protection -- that is a trap for the unwary.

> 
> .... 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...

If their use is legal, then other people shouldn't bring frivolous cases;
if they do they should pay.  I support requiring a bond for UDRP
complainants to be lost if the case is deemed to be frivolous.

> 
> .... 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.

The implicit suggestion that people should thererfore cede all short
catchy names (all of which are trademarked for SOMETHING) to the
commercial sector is to me quite revolting as an attack on our common
language.

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

Let's consider the fate of the English language.  Just about every noun
and adjective is trademarked for something.  I think I have a right to
those words too.

> 
> 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.

Again, I'm not sure what you mean.  if you mean that 'average' users
should be counseled to avoid all the nice catchy names because someone,
somewhere, has a trademark on it for something, we don't live on the same
mental, legal or political planet.  But perhaps you meant something else?

> 
> 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...

Nope, that's what you mean.  No thanks.

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

Actually, it depends more on the rapacity of the trademark bar.

> 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.

The UDRP has enormous built-in problems, including the intellectual
dishonesty of a *small but vocal* fraction of the arbitrator pool, the
unwillingness of the providers to accept a balanced panel of arbitrators
(WIPO, for example, won't have me as an arbitrator), and many many
procedural flaws discussed at some length in
http://personal.law.miami.edu/~froomkin/articles/udrp.pdf

> 
> 
> 
> -----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--
> > 
> > 
> > --
> > This message was passed to you via the [email-masked] list.
> > Send mail to [email-masked] to unsubscribe
> > ("unsubscribe ga" in the body of the message).
> > Archives at http://www.dnso.org/archives.html
> > 
> > --
> > This message was passed to you via the [email-masked] list.
> > Send mail to [email-masked] to unsubscribe
> > ("unsubscribe ga-full" in the body of the message).
> > Archives at http://www.dnso.org/archives.html
> > 
> > 
> 
> 

- -- 
		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: Sun, 8 Dec 2002 17:59:27 -0500
From: "Cade,Marilyn S - LGA" <[email-masked]>
Subject: RE: [ga] Stolen domains, transfers, WHOIS, audit trails, andsystemintegrity

I'm not focused at all on "short catchy" names, Michael, UNLESS they are trademarked... 

maybe that helps?

- -----Original Message-----
From: Michael Froomkin - U.Miami School of Law
[mailto:[email-masked]]
Sent: Sunday, December 08, 2002 3:52 PM
To: Cade,Marilyn S - LGA
Cc: Karl Auerbach; George Kirikos; [email-masked]
Subject: RE: [ga] Stolen domains, transfers, WHOIS, audit trails,
andsystemintegrity

I note that you are changing the subject rather than responding.  Why is
that?  Is it because I'm right?  You may know my views on things, but I
certainly don't know how you can make the first and third sentences of
the post I responded to both seem accurate at the same time.  I think they
are contradictory.

But, since you ask about these new things....

On Sat, 7 Dec 2002, Cade,Marilyn S - LGA wrote:

> 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..

I don't understand the hypo.  If the individual use is non-commercial, the
indivdual is not an infringer, so there is no issue: their use is legal.  
Those are the interests, oft trampeled on, that I care most about.

If the use is commercial, the use is not infringing unless the name is
very famous (subject to correction in the pending Victoria's Secret case)
or the use is in the same line of goods in the relevant
jurisdiction/terriotry. In neither of those cases am I overyly sympathetic
to the poor small business person who should have done a trademark search.
Those are the rules of the game.  I am concerned about claims that many
marks should be seen as famous enought to command federal dilution
protection -- that is a trap for the unwary.

> 
> .... 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...

If their use is legal, then other people shouldn't bring frivolous cases;
if they do they should pay.  I support requiring a bond for UDRP
complainants to be lost if the case is deemed to be frivolous.

> 
> .... 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.

The implicit suggestion that people should thererfore cede all short
catchy names (all of which are trademarked for SOMETHING) to the
commercial sector is to me quite revolting as an attack on our common
language.

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

Let's consider the fate of the English language.  Just about every noun
and adjective is trademarked for something.  I think I have a right to
those words too.

> 
> 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.

Again, I'm not sure what you mean.  if you mean that 'average' users
should be counseled to avoid all the nice catchy names because someone,
somewhere, has a trademark on it for something, we don't live on the same
mental, legal or political planet.  But perhaps you meant something else?

> 
> 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...

Nope, that's what you mean.  No thanks.

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

Actually, it depends more on the rapacity of the trademark bar.

> 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.

The UDRP has enormous built-in problems, including the intellectual
dishonesty of a *small but vocal* fraction of the arbitrator pool, the
unwillingness of the providers to accept a balanced panel of arbitrators
(WIPO, for example, won't have me as an arbitrator), and many many
procedural flaws discussed at some length in
http://personal.law.miami.edu/~froomkin/articles/udrp.pdf

> 
> 
> 
> -----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--
> > 
> > 
> > --
> > This message was passed to you via the [email-masked] list.
> > Send mail to [email-masked] to unsubscribe
> > ("unsubscribe ga" in the body of the message).
> > Archives at http://www.dnso.org/archives.html
> > 
> > --
> > This message was passed to you via the [email-masked] list.
> > Send mail to [email-masked] to unsubscribe
> > ("unsubscribe ga-full" in the body of the message).
> > Archives at http://www.dnso.org/archives.html
> > 
> > 
> 
> 

- -- 
		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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Send mail to [email-masked] to unsubscribe
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------------------------------

End of GA-DIGEST V1 #1521
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