Subject: GA-DIGEST V1 #358
From: [email-masked] (GA-DIGEST)
To: [email-masked]

GA-DIGEST           Saturday, April 7 2001           Volume 01 : Number 358

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

Date: Sat, 07 Apr 2001 00:07:24 -0700
From: Eric Dierker <[email-masked]>
Subject: [ga] POWERFILLED DAY

i just assumed based on the nomination situation and the fact I thought
they would enforce that 10 nomination rule, that I was never in the
running for chair.  I did not care, for those of you just watching it
has been when heck of a fun ride.  One of the really cool things was the
confidence that some of these big players put me into.
    Wow these guys have been fighting each other for years, they have
lost domain names and government contracts worth BBilllions. This is
really neat because the way rules currently are I can ask you to revote
and vote the last time for me.
    REALLY YOU CAN REVOTE AND VOTE FOR ME.  If you take a man yelling
and kicking and screaming and make him take the post, you have your man.

If you take a man who really wants it you have OUR MAN.
    No, unequivocally Corliss is not the guy due to conflicts and
agendas which hit the heart of the survival of ICANN.

I still have more post before I take of to the consulate in SF in the
early am. All of you people rock.

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Date: Sat, 7 Apr 2001 02:06:45 -0500
From: Andy Gardner <[email-masked]>
Subject: RE: [ga] ICANN benefits

>-No policing by ICANN of the supplemental rules instituted by the providers
>to ensure they mesh with the ICANN rules (for instance see
>http://www.arbforum.com/domains/decisions/95344.htm)

The decision for that case, and that case alone, should have been enough
proof of the stupidity of the current system to have the UDRP frozen and no
more cases heard until it was repaired.

Digusting.

How to steal a domain name using the UDRP.

Publish a magazine using that domain name (that you don't and have never
owned) on the masthead, then claim "consumer confusion" and get some Arb
Forum "arbitrators" to give you the name.

What a sham.

And still it continues.

- -- 
Andrew P. Gardner
barcelona.com stolen, stmoritz.com stays. What's uniform about the UDRP?
We could ask ICANN to send WIPO a clue, but do they have any to spare?
Get active: http://www.domain-owners.org http://www.tldlobby.com
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Date: Sat, 07 Apr 2001 00:33:03 -0700
From: Eric Dierker <[email-masked]>
Subject: Re: [ga] ICANN benefits

Ah give me a break,

The UDRP does not give any credence to over two hundred years of American and
before that English Jurisprudence.  The UDRP does not take into account the
international standard of categories. Sun for one is sun for all, and that is
worthless.
The UDRP is a license to Hijack, plain and simple and it is by history a deal with
the IP group so that they ICANN could get away with deals like Versign without
debating against the power of the IP lawyers, Why else did they not weigh in
against it. Does this tie in with the WHOIS violations, you bet it does! Same group
same quiet.

Don't get me wrong I have filed for and gotten trademarks but this is different.
If someone wants to debate, protection for the purpose of promoting
entreprenueralism, I am good to go but this is not the case.  It creates the exact
opposite.

Jeff Williams wrote:

> Sandy and all remaining assembly members,
>
> Sandy Harris wrote:
>
> > Dave Crocker wrote:
> >
> > > The law in most countries "institutionalizes trademark favortism".  It has
> > > done that rather longer than ICANN has been around...
> >
> > However, it also protects multiple uses of a trademark. Sun Microsystems,
> > Sun Oil, the Sun and Surf Resort, ... and provides procedural safeguards
> > for the rights of the alleged violator.
>
>   Yes, but a domain name of sun.org or sun.biz is not necessarily violating any
> TM's that say Sun Oil or Sun Microsystems may hold, as the class of mark
> is the distinction.  Yet, the UDRP would and has differed on this distinction.
>
> >
> >
> > > If you mean that the UDRP provides ADDITIONAL benefits to trademark
> > > holders, well, that becomes a finer point of debate.
> >
> > It isn't entirely clear to me what the URDP was designed to accomplish, but
> > it seems cleat that in practice at least some decisions (bodacioustatas leaps
> > to mind) gave benefits to trademark owners that go way beyong anything they'd
> > be legally entitled to in any juritiction I know of.
>
>   Well I am a little worried when it comes to Bodacioustatas dot anything
> starts leaping, if you know what I mean?  >;)
>
>   None the less, your point is well taken.  Some of us have argued strenuously
> that the UDRP is "Extralegal" in its effect and reach.  This has proven to be
> well founded in some instances with some cases, as many of us already
> are or have become aware of...  Hence it is obvious, and always has been
> that the UDRP is a tool for the large IP interests, and those that wish to
> take advantage of startup ecommerce companies to steal DN's that are
> or were legitimately registered.  It is also relevant that the UDRP, was
> not a consensus based decision by the than ICANN BoD in it's present
> form.
>
>   Given all this, it is I believe safe to say that the UDRP is definitely NOT
> one of ICANN shining accomplishments, in fact that contrary would be
> accurate.
>
> >
> >
> > > As has been noted frequently, the UDRP needs enhancement.  But let's not
> > > attribute more precedent to it or ICANN than is valid.
> >
> > Specifically, it needs better protection for the domain holders who are
> > attacked using it.
>
>   How very true.
>
> >
> > --
> > 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
>
> Regards,
>
> --
> Jeffrey A. Williams
> Spokesman for INEGroup - (Over 118k members strong!)
> CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
> Information Network Eng. Group. INEG. INC.
> E-Mail [email-masked]
> Contact Number:  972-447-1800 x1894 or 214-244-4827
> Address: 5 East Kirkwood Blvd. Grapevine Texas 75208

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Date: Sat, 07 Apr 2001 01:04:06 -0700
From: Eric Dierker <[email-masked]>
Subject: Re: [ga] ICANN benefits

the UDRP was a deal made with the IP group.  plain and simple, if they were
required to follow the IANA contract and the APA, especially the APA there would
be no UDRP.

Andy Gardner wrote:

> >-No policing by ICANN of the supplemental rules instituted by the providers
> >to ensure they mesh with the ICANN rules (for instance see
> >http://www.arbforum.com/domains/decisions/95344.htm)
>
> The decision for that case, and that case alone, should have been enough
> proof of the stupidity of the current system to have the UDRP frozen and no
> more cases heard until it was repaired.
>
> Digusting.
>
> How to steal a domain name using the UDRP.
>
> Publish a magazine using that domain name (that you don't and have never
> owned) on the masthead, then claim "consumer confusion" and get some Arb
> Forum "arbitrators" to give you the name.
>
> What a sham.
>
> And still it continues.
>
> --
> Andrew P. Gardner
> barcelona.com stolen, stmoritz.com stays. What's uniform about the UDRP?
> We could ask ICANN to send WIPO a clue, but do they have any to spare?
> Get active: http://www.domain-owners.org http://www.tldlobby.com
> --
> 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

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

Date: Sat, 7 Apr 2001 03:28:35 -0700 
From: Roeland Meyer <[email-masked]>
Subject: RE: [ga] ICANN benefits

One benefit (for various definitions of benefit), ICANN has managed to
exchange the flawed NSI Domain Dispute Resolution Policy (DDRP) with the,
even more flawed, Uniform Dispute Resolution Policy (UDRP). It is well
documented that this new policy benefits trademark holders, to the detriment
of everyone else. Alas, it is a benefit, even if to a special interest
group.

However, to the best of my recollection of the time, at the genesis of the
DNSO, the Clinton Administration requested the ICANN BoD to specifically
look into a WIPO request to protect trademark and IP interests wrt DNS. The
almost immediate response was to form WG-A. It had a very short time-line,
like WG-Review, and consensus was unilaterally declared for the UDRP, by its
chair. The decision was handed over to the BoD and enacted almost
immediately. The Clinton Administration was pleased with the performance, by
all reports. It was a classic WIPO end-run around due-process.

WG-A was opaque. Most of us didn't even know it existed until it was too
late to provide input. Even from within the WG, there came an outcry that
the declaration of consensus was made unilaterally, by the WG chair, and was
not supported by the WG. However, WIPO got what they paid for, the Clinton
Administration was pleased, and we are stuck with the UDRP (about five steps
backwards from the DDRP, IMHO and supporting results).

Now, doesn't that lighten your heart, put a spring in your step, and bring
new color to your world? I thought not.

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Date: Sat, 7 Apr 2001 07:06:28 -0700
From: Kent Crispin <[email-masked]>
Subject: Re: [ga] ICANN benefits

On Fri, Apr 06, 2001 at 11:38:07PM -0700, Eric Dierker wrote:
> Hi Kent, You are a great guy but I am afraid you have been misled.

I'm happy to inform you that your fears are groundless :-)

> > No, this is not correct.  ICANN does not have that authority.  ICANN
> > can only implement what are explicitly described in the NSI contract as
> > "consensus policies", and there are a strict set of standards defining
> > what "consensus policies" are.
> >
> 
> When do they have the authority and when to they not.  You are way off the mark
> the NSI contract with ICANN places NSI and I think you mean Versign, as a
> Subcontractor.  The only and I mean ONLY contract that ICANN has to comply with is
> their DoC contract

Hard to know what you mean precisely by "comply", but basically, your statement 
is nonsense.  Contracts are contracts; ICANN is bound by many contracts.

One always has the option of not complying with the terms of any
contract, but of course, you run the associated risks.  For example,
ICANN doesn't have to comply with their rental agreement for office
space, but if they don't, they could get evicted.  In other words, ICANN
is bound to comply with contracts just like everybody else is so bound;
there are lots of contracts that bind ICANN besides the DOC contract.

> that is the only right and power ICANN has and it is revocable
> at the "convenience" of the USG. Maybe you mean the IANA replacment contract or
> the contract with the DoC or USG.

In the case at point the contracts of interest are the NSI agreement 
and the registrar accreditation agreement.  Both of these have a fairly 
strong definition of the term "consensus policy".

[...]

- -- 
Kent Crispin                               "Be good, and you will be
[email-masked]                           lonesome." -- Mark Twain
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Date: Sat, 7 Apr 2001 10:54:17 -0400
From: "Russ Smith" <[email-masked]>
Subject: RE: [ga] ICANN benefits

>No, this is not correct.  ICANN does not have that authority.  ICANN
>can only implement what are explicitly described in the NSI contract as
>"consensus policies", and there are a strict set of standards defining
>what "consensus policies" are.

ICANN developed the contracts themselves and, according to you, they also
did all the planning and manage the system.  Now you are trying to say that
they are somehow not responsible for it.

As for the definition of "consensus policies," the ICANN legal staff decides
on an ad hoc basis what the standards for such a policy is.  In the case of
trailing hyphen domains it took ICANN less than 2 days.  Roberts did an
interview saying the domains cause problems with intellectual property.
When the official statement came out the reasons had changed somewhat to
focus on  technical issues and how some client software would not work.  (Of
course the same was true with long domain names that were released right
about the same time).

What it comes down to is that if you tell someone that you cannot perform X
task automatically because the WHOIS are all different depending on which
registrar then they ask "why hasn't ICANN done that... when they already set
up a UDRP process?"  I guess I can point them to the postings of Crispin and
Crocker where they explain how stupid they are for thinking such a thing.

In any case, I have had enough of this list as it is pretty much useless
banter that will go on for years and years.

Russ Smith
http://consumer.net

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Date: Sat, 7 Apr 2001 08:39:14 -0700 (PDT)
From: Patrick Greenwell <[email-masked]>
Subject: Re: [ga] ICANN benefits

On Fri, 6 Apr 2001, Eric Dierker wrote:

> Anyone had better take that position seeing how we are looking at about %80
> overturn ratio in federal courts upon WIPO type decisions.

Hi Eric,

I believe others besides myself would be interested in the cases behind
the 80% figure. Could you please provide some references? It would be much
appreciated.

/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\
                               Patrick Greenwell
                       Earth is a single point of failure.
\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/

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

Date: Sat, 07 Apr 2001 18:16:20 +0200
From: Robin Miller <[email-masked]>
Subject: Re: [ga] something about decorum

Eric,

Personally, I hold a great deal of respect for Patrick Corliss. He has been
largely on the mark with most internet issues, and I think you mischaracterise
him badly. I find myself by and large in agreement with him, and this has been
for some time by now. (long before he was nominated to be chair of this list). 

I think most people if not every single person on this list, has an agenda of
some sort. So what. I've had a lot of discussions with Patrick on and offlist -
I have to say I have no 'objection' to his 'agenda', which I happen to find
rather honest and above board. His response to Kristy was completely honest and
truthfully told as well, given my own experiences with some of the 'players' on
these lists. And an opinion more than likely shared by a majority here,
including myself.

all the best, Robin
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Date: Sat, 7 Apr 2001 10:03:21 -0700
From: "Tim Langdell, PhD" <[email-masked]>
Subject: Re: [ga] ICANN benefits

Sandy

I heartily concur. Having been involved in numerous trade mark matters over
the last 20 years, the aspects that remains relatively "sane" in
international trade mark law are (a) it IS international -- that is, having
a US trademark does not give you automatic rights in the UK, or Germany or
Japan or etc, or vice versa, and (b) it protects the use of the same or very
similar marks as long as they use is distinct and consumers will not get
confused as to the true source and ownership of the goods or services
associated with  the mark.

The key problem with applying trade mark law unthinkingly to the Internet as
it stands at this moment in time, is that the vast majority of worldwide
commerce is under the ".com" domain. And where you have only one TLD (.net
has never gained the same favor) then of course you can only have one owner
of any given name: your example using "Sun" is a good one. While there can
only be one "sun.com" there are probably tens if not hundreds of entirely
legitimate owners of a trademark in the US alone of either the word "sun" or
some variant on it. Considering the world market -- which the Internet is,
we cannot and must not ignore that -- then the number of rightful owners of
the mark "sun" probably spreads to thousands. More, in the case where an
even more commonly used mark is used as an example (please, no one respond
that my figures are incorrect -- this is "for example" only and I am not
meaning to say I have researched the trade mark "sun" per se in all
countries world wide -- that said entering the search term "sun" in just the
USPTO TM database gives 6,820 "hits").

Even an attempt to rely on "famous names" (an old fall back in the IP world)
cannot work: you cannot say that the most famous name holder for a given
trade mark name is the one who should have the right to a given "TMname.com"
as what is "famous" varies from country to country/territory to territory.
And it is not inconceivable that two identical marks could both achieve
famous name status for two quite distinct markets within the same
country/territory.

Also, blind application of existing trademark registrations alone to
deciding who has a right to a given domain name does not allow for the quite
reasonable claim that one can build a worldwide commercial entity based
solely on the web (e.g. Amazon.com) which then can be argued to have
legitimate claim to a trademark (arguably "amazon.com" rather than purely
"Amazon" -- but I wont go deeper on that here .. ) even if there is a strong
rights holder in the same name (here "amazon") in any given territory in the
world. Rights are established (and preserved) through USE in most trademark
law worldwide: you do not have to register your mark to claim rights to
protect it or to claim ownership of it. Registration per se does NOT confer
ownership of a mark in any absolute sense (that is why most worldwide TM
registries have a process such as a right to petition to cancel, etc).

What we have right now is the equivalent of a single street on which
international commerce is asked to situate (yes I know there are country
codes -- but the dominance of ".com" cannot be denied). And applying the
rule that no two store fronts on this one street can have the same name even
if they have established ownership rights in that name elsewhere, is clearly
a broken model.

In sum, no matter what is done using the UDRP or by WIPO or ICANN or etc is
likely to be subject to reasonable criticism. So long as we have just ".com"
dominant, then they are in a no-win situation resolving name disputes in
many if not all cases.

Yes, I know that .biz is about to happen, but that is clearly not in and of
itself a solution as it will marginally lessen the current problem but come
no where close to curing it. Indeed, it is arguable that the introduction of
just one major new alternate to .com will worsen the situation, not help it
(I can go into that later if you wish ...)

In all, I can see no stronger argument for the need for more TLDs to enable
a more rational use of marks in worldwide Intent commerce: the need for more
usable English language (roman.roman) names, and the need for more
multilingual names. Ultimately, Trademark owners should welcome new TLDs not
fear them.

Tim

- ----- Original Message -----
From: "Sandy Harris" <[email-masked]>
To: <[email-masked]>
Sent: Friday, April 06, 2001 9:07 PM
Subject: Re: [ga] ICANN benefits

> Dave Crocker wrote:
>
> > The law in most countries "institutionalizes trademark favortism".  It
has
> > done that rather longer than ICANN has been around...
>
> However, it also protects multiple uses of a trademark. Sun Microsystems,
> Sun Oil, the Sun and Surf Resort, ... and provides procedural safeguards
> for the rights of the alleged violator.
>
> > If you mean that the UDRP provides ADDITIONAL benefits to trademark
> > holders, well, that becomes a finer point of debate.
>
> It isn't entirely clear to me what the URDP was designed to accomplish,
but
> it seems cleat that in practice at least some decisions (bodacioustatas
leaps
> to mind) gave benefits to trademark owners that go way beyong anything
they'd
> be legally entitled to in any juritiction I know of.
>
> > As has been noted frequently, the UDRP needs enhancement.  But let's not
> > attribute more precedent to it or ICANN than is valid.
>
> Specifically, it needs better protection for the domain holders who are
> attacked using it.
> --
> 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 Apr 2001 10:43:54 -0700 
From: Roeland Meyer <[email-masked]>
Subject: RE: [ga] ICANN benefits

> From: Russ Smith [mailto:[email-masked]]
> Sent: Saturday, April 07, 2001 7:54 AM

> In any case, I have had enough of this list as it is pretty 
> much useless banter that will go on for years and years.

Agreed. The GA has no power to change anything. We might as well be baying
at the moon, for all the good this list does.

But then, that's the point of this list anyway, eh? Someplace the little
people can go to bay at the ICANN moon?

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Date: Sat, 07 Apr 2001 14:04:44 -0400
From: Sandy Harris <[email-masked]>
Subject: Re: [ga] ICANN benefits

Russ Smith wrote:

>  Domains like
> guinness-beer-really-really-sucks.com have been found to be "confusingly
> similar."  Advantage to TM holder.

That sucks :-)

If the adjudicators cannot get this right on their own -- and there seems to
be considerable evidence that at least they haven't to date -- then methinks
we need some explicit guidance added to the UDRP.

In particular:

A satire domain -- say, ibm-sucks.com or Incomplete-But-Marketable.net --
is entirely legitimate. The only URDP case that should even be considered
against such domains would be one from a critic if IBM registered them to
prevent criticism. That should succeed.

Of course, that does not leave IBM defenseless. They can issue press releases,
rebut on their own site, ... use slander or libel laws if the satire goes
beyond those bounds, trade secret law in other cases, ...

Also, multiple non-conflicting uses -- as in Sun Oil and Sun Microsystems,
both valid trademarks in at least the US -- should be explicitly allowed.
The burden of proof for alleged conflict is on the complainant.
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Date: Sat, 7 Apr 2001 14:06:10 -0400 
From: "Cade,Marilyn S - LGA" <[email-masked]>
Subject: [ga] percentages and numbers of cases

I'm not aware of that figure of overturn of trademark cases under the UDRP.
But, then, maybe a lot of cases haven't been taken to court, after a UDRP
decision?  Sometimes percentages can appear very significant, if one doesn't
know the number of cases.  So, it could be factual, but representative of a
small number of cases pursued. Could that be the situation?

- -----Original Message-----
From: Patrick Greenwell [mailto:[email-masked]]
Sent: Saturday, April 07, 2001 11:39 AM
To: Eric Dierker
Cc: Dave Crocker; [email-masked]
Subject: Re: [ga] ICANN benefits

On Fri, 6 Apr 2001, Eric Dierker wrote:

> Anyone had better take that position seeing how we are looking at about
%80
> overturn ratio in federal courts upon WIPO type decisions.

Hi Eric,

I believe others besides myself would be interested in the cases behind
the 80% figure. Could you please provide some references? It would be much
appreciated.

/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\
/\
                               Patrick Greenwell
                       Earth is a single point of failure.
\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/
\/

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Date: Sat, 7 Apr 2001 14:13:50 -0400
From: "Sotiropoulos" <[email-masked]>
Subject: Re: [ga] ICANN benefits

From: Patrick Greenwell :
> I believe others besides myself would be interested in the cases behind
> the 80% figure. Could you please provide some references? It would be much
> appreciated.

Patrick,

You might wish to ask Milton Mueller about the figure of 80%.  Milton
mentions the figure of 80% in a report of his on the topic that is cited in
the following article:
http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagename=law/View
&c=Article&cid=ZZZ30K9I8LC&live=true&cst=1&pc=3&pa=0&s=News&ExpIgnore=true&s
howsummary=0

Sotiris Sotiropoulos
        Individual

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Date: Sat, 7 Apr 2001 11:18:11 -0700 (PDT)
From: Patrick Greenwell <[email-masked]>
Subject: Re: [ga] ICANN benefits

On Sat, 7 Apr 2001, Sotiropoulos wrote:

> From: Patrick Greenwell :
> > I believe others besides myself would be interested in the cases behind
> > the 80% figure. Could you please provide some references? It would be much
> > appreciated.
>
> Patrick,
>
> You might wish to ask Milton Mueller about the figure of 80%.  Milton
> mentions the figure of 80% in a report of his on the topic that is cited in
> the following article:

Were it so. Milton's assertion is that 80% of *claimants* win, not that
80% of the decisions are overturned.

/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\
                               Patrick Greenwell
                       Earth is a single point of failure.
\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/

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Date: Sat, 7 Apr 2001 14:26:23 -0400
From: "Sotiropoulos" <[email-masked]>
Subject: Re: [ga] ICANN benefits

From: Patrick Greenwell
> On Sat, 7 Apr 2001, Sotiropoulos wrote:
> > You might wish to ask Milton Mueller about the figure of 80%.  Milton
> > mentions the figure of 80% in a report of his on the topic that is cited
in
> > the following article:
>
> Were it so. Milton's assertion is that 80% of *claimants* win, not that
> 80% of the decisions are overturned.

I must have misunderstood the thrust of your post.  I was under the
impression that Eric's original post *was* making the point that 80% of the
cases resulted in claimant victory...  In any case, the relevant excerpt
from the article link I posted reads as follows:

"UDRP does appear to favor
  trademark owners. In a recent
  report, Professor Milton Mueller, of
  Syracuse University School of
  Information Studies, analyzed three
  of the four groups authorized to
  arbitrate domain name disputes. He
  found trademark owners, who are
  the only ones permitted to file a
  complaint under UDRP, won 80
  percent of the time."

Regards,

Sotiris Sotiropoulos
        Individual

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Date: Sat, 7 Apr 2001 11:18:22 -0700
From: Kent Crispin <[email-masked]>
Subject: Re: [ga] ICANN benefits

On Sat, Apr 07, 2001 at 02:04:44PM -0400, Sandy Harris wrote:
> 
> If the adjudicators cannot get this right on their own -- and there seems to
> be considerable evidence that at least they haven't to date -- then methinks
> we need some explicit guidance added to the UDRP.
> 
> In particular:
> 
> A satire domain -- say, ibm-sucks.com or Incomplete-But-Marketable.net --
> is entirely legitimate.

One of the fundamental problem in that notion, however, is that "satire"
is an intrinsically subjective judgement.  The UDRP is an arbitration
proceeding, not a court; the rules of procedure are much simpler, and
the safeguards are not as elaborate. 

> The only URDP case that should even be considered
> against such domains

The problem is not so much protecting such domains; the problem is
defining them. 

> Also, multiple non-conflicting uses -- as in Sun Oil and Sun Microsystems,
> both valid trademarks in at least the US -- should be explicitly allowed.

It is.

> The burden of proof for alleged conflict is on the complainant.

It is.

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[email-masked]                           lonesome." -- Mark Twain
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Date: Sat, 7 Apr 2001 11:14:03 -0700
From: "Tim Langdell, PhD" <[email-masked]>
Subject: Re: [ga] ICANN benefits

Kent et al,
- ----- Original Message -----
From: "Kent Crispin" <[email-masked]>
To: <[email-masked]>
Sent: Saturday, April 07, 2001 11:18 AM
Subject: Re: [ga] ICANN benefits

> On Sat, Apr 07, 2001 at 02:04:44PM -0400, Sandy Harris wrote:
> >
> > If the adjudicators cannot get this right on their own -- and there
seems to
> > be considerable evidence that at least they haven't to date -- then
methinks
> > we need some explicit guidance added to the UDRP.
> >
> > In particular:
> >
> > A satire domain -- say, ibm-sucks.com or
Incomplete-But-Marketable.net --
> > is entirely legitimate.
>
> One of the fundamental problem in that notion, however, is that "satire"
> is an intrinsically subjective judgement.  The UDRP is an arbitration
> proceeding, not a court; the rules of procedure are much simpler, and
> the safeguards are not as elaborate.
>
> > The only URDP case that should even be considered
> > against such domains
>
> The problem is not so much protecting such domains; the problem is
> defining them.
>
> > Also, multiple non-conflicting uses -- as in Sun Oil and Sun
Microsystems,
> > both valid trademarks in at least the US -- should be explicitly
allowed.
>
> It is.

I presume you meant "they are". But the point being made was that currently
only one entity can have (say) "sun.com" even though there might be equal
claimants on the name (Sun Oil and Sun Microsystems to name but two). So the
answer is "they are not allowed".

>
> > The burden of proof for alleged conflict is on the complainant.
>
> It is.

Not so if the system makes any basic assumption at all as to fundamental
rights. For instance if one assumes that ownership of a "registered"
trademark gives some fundamental right then the burden of proof switches to
the defendant, which to some seems unfair. To other seems entire fair. Where
it gets complicated is that you do not have to have a registered trademark
in any given country to "own" a trademark. You can claim rights based on
common law entirely legitimately.

>
> --
> Kent Crispin                               "Be good, and you will be
> [email-masked]                           lonesome." -- Mark Twain
> --
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> Send mail to [email-masked] to unsubscribe
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>
>

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Date: Sun, 8 Apr 2001 04:50:13 +1000
From: "Patrick Corliss" <[email-masked]>
Subject: Re: [ga] ICANN benefits

Hi Tim

Good analysis.  Thank you.  One quick comment:

> And it is not inconceivable that two identical marks could both achieve
> famous name status for two quite distinct markets within the same
> country/territory.

In Australia, nobody would associate "Freedom Furniture" with "Freedom Tampons"
but everybody would easily recognise the two very well lnown brands.

I don't know whether they both have exactly the same mark "Freedom" but clearly
they could have.  Both would be entitled to claim the domain name.

Best regards
Patrick

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Date: Sat, 7 Apr 2001 14:47:44 -0400
From: "Sotiropoulos" <[email-masked]>
Subject: [ga] VOTE

This is a multi-part message in MIME format.

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I am having trouble sending my second vote ballot to [email-masked]  My =
emails are being returned undelievered. =20

Sotiris Sotiropoulos
        Individual

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<BODY bgColor=3D#ffffff>
<DIV><FONT face=3DArial>I am having trouble sending my second vote =
ballot to <A=20
href=3D"mailto:[email-masked]">[email-masked]</A>&nbsp; My emails are =
being=20
returned undelievered.&nbsp; </FONT></DIV>
<DIV><FONT face=3DArial></FONT>&nbsp;</DIV>
<DIV><FONT face=3DArial>Sotiris Sotiropoulos</FONT></DIV>
<DIV><FONT face=3DArial>&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;=20
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End of GA-DIGEST V1 #358
************************