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RE: [wg-b] 800 Telephone Scenario

My voice is but one vote. Titles are highly over-rated.  To date I believe
there has been a health discussion but no consensus on any of the
substantive issues. My job as co-chair is to increase participation and
stimulate discussion, and then report on the consensus of the group. Voting
will being next week and question 0 will be is there a need for an
exclusionary device at all.  If the consensus to this answer is no - then
this should be a rather simple report. But if the answer is yes then they
are other more complex issues that we must address.

Is it your viewpoint that the work in this group is complete???

One of the criticisms of Working Group A is that they rushed things. Because
I just added 4 more people to the list today I believe it would premature to
say that a consensus has been reached.

You assumed correct. I believe my willingness as an individual participant
in this group was reflected in my entire statement:

>I refuse as co-chair to adopt such a fatalistic viewpoint - unless the
consensus of the group
>dictates otherwise.

Dictatorships, even benevolent ones, are not a good thing in my opinion. :)

Best regards,

Michael D. Palage

-----Original Message-----
From:	d3nnis [mailto:d3nnis@mciworld.com]
Sent:	Tuesday, September 21, 1999 8:50 AM
To:	mpalage@infonetworks.com; wg-b@dnso.org
Subject:	Re: [wg-b] 800 Telephone Scenario

Michael --

 We reached a consensus on this issue of "rights" to famous
names already.

We've had a lengthy discussion -- and disagreement --
regarding  the problems of defining "fame",
and the need to avoid entering the content of trademark law, to
mention only two of the obstacles.

I assume your statement "I as co-chair  refuse to accept ... [it]" was
not intended to be  a direct instruction overruling the group's decision,
a clarification is badly needed if we are to have any productive
discussions at all at this point.



> I did not ditch the notification process.  I just think the 800 number
> analogy is worth "exploring" because it is as to the real world as we get.
> Alpha-numeric identification strings, growing demand for new space, former
> monopolies, etc. I am trying to get my hands on the documents submitted to
> the FCC as to why the 888 exclusion was permitted but the 877 was not.
> part of the constructive exploring that this group is tasked to do.
> this analogy is not on all-fours with the DNS model I have yet to find a
> closer real world model.
> I think the notification process is important and could/should be
> incorporated into a final solution, but there are some fatal problems
> I do not believe have been addressed. No registry or related agency is
> voluntarily going to undertake the notification process, to either the
> trademark owner or domain name registrant, because of various legal and
> technical problems associated with it (see NSI's position in the
> case where the court wanted NSI to install filters). Therefore, domain
> registrants will never be able to receive the neutral type of notification
> that was discussed on the list. The only notification will come in the
> of a cease and desist letters that some attorney will write after his/her
> client has been notified either through its own efforts or through the
> services of a third party that will monitor the root for specific
> sub-strings. So in this case we have come full circle and we are back to
> square one. The compromise in the idea that I proposed yesterday involved
> affirmative act by a trademark owner to qualify their mark as famous and
> then grant them a right a first refusal in the new gTLD space that could
> challenged by a third party.
> There are some people that I believe would like to scrap the entire
> Group B process and let the parties, famous trademark owners and domain
> registrants, fight it out under the new soon to be enacted Uniform Dispute
> Policy. But who wins under that solution - no one. I refuse as co-chair to
> adopt such a fatalistic viewpoint - unless the consensus of the group
> dictates otherwise. Other ccTLDs have enacted safeguards for famous
> trademark owners so I fail to see why this group of participants (with
> impressive credentials) cannot reach an intelligent well thought out
> compromise.
> To follow-up on an issue raised by Dennis with regard to the group's focus
> on protecting trademarks above religions, etc. I guess the question is
> rather simple. On a global basis, reaching a consensus on economic issues
> much easier to do than on religious ones. I believe this fact is evidenced
> by the large number of signatories to the various international treaties
> regarding intellectual property.
> We as a group have the ability to make a positive constructive impact.
> Otherwise we collectively will be forced to traverse an uncharted mind
> of clue.com and candyland.com case law.
> As always, I welcome any input - positive or negative. Who said building a
> consensus was easy :)
> Votebot testing is currently underway. Should be operational by Friday.
> P.S. Thanks for the civilized nature of the list to date. Let's keep up
> good work.
> -----Original Message-----
> From:	owner-wg-b@dnso.org [mailto:owner-wg-b@dnso.org] On Behalf Of eileen
> kent
> Sent:	Tuesday, September 21, 1999 10:17 AM
> To:	wg-b@dnso.org
> Subject:	Re: [wg-b] 800 Telephone Scenario
> I have to agree with Milton on many points. In particular, the right of
> first refusal for a stand alone string seems pretty marginal. It injects
> bureaucracy and expense into a process that is essentially a nod to the
> i.p. community without much substance.
> I thought we were kind of on track here with an automatic notification to
> both sides of any incidence of a string within a registration that
> replicates a famous name (definition to come). I believe Randy Bush came
> with some palatable language for a machine generated notification. If the
> trademark owner has a problem with the registration, he can go immediately
> into dispute resolution.
> I commend Michael for continuing to think of creative solutions and for
> bringing such disparate (but civil) voices together. And thanks, Michael,
> for the vote bot. I think we may need to vote on what we're going to vote
> for, though.
> eileen
> p.s. I got a letter from a company called "enic" offering to sell me
> eileenkent.cc. What's up with that?
> At 10:33 PM 9/20/99 -0400, Milton Mueller wrote:
> >Michael:
> >
> >I cannot reject it out of hand at this point, but I have great difficulty
> accepting
> >the proposal to create a "right of first refusal" in new gTLDs, for the
> following
> >reasons.
> >
> >1. It would be useful to know why the US FCC did not create such a right
> in the 877
> >number space, after it did so in the 888 space. Perhaps others can
> more
> >information here, but my impression was that the whole issue of confusion
> was not
> >perceived to be a serious problem, especially with more than two
> number
> >spaces. There is no evidence that the absence of first refusal in the new
> space has
> >caused any problems.
> >
> >2. Implementing a first refusal right implies that no new names can be
> registered
> >under a gTLD until we have a list of "famous" names. We can't have such a
> list
> >without a defined procedure--which we don't have yet.We would also need
> sift
> >through hundreds, perhaps thousands of applications for famous status.
> This implies a
> >delay of several months, perhaps even years, before new gTLDs can come on
> line. This
> >is Not Good.
> >
> >3. Does "first refusal" really add that much protection to a UDRP? Put
> another way,
> >is the marginal increment of protection offered by first refusal worth
> associated
> >increase in bureacracy, complexity, delay, and new possibilities of abuse
> by TM
> >holders? I don't think it is.
> >
> >4. The analogy between slow, "controlled" growth in the number space and
> in the
> >domain name space is not valid. Economically, there is no comparison
> between the two.
> >The telephone number space is highly restricted. There are only a few
> codes available
> >that can be used. The domain name space, in contrast, is virtually
> unlimited.
> >Technically, there could be thousands of new TLDs, although no one
> probably wants to
> >operate that many.
> >
> >Expansion of the 800 number space has been driven by the fact that we are
> literally
> >running out of available numbers; i.e. exhaustion of supply. Expansion of
> the domain
> >name space is driven by the desire of users and some suppliers for new
> unique
> >names; i.e. by the differentiated demand.
> >
> >The radically different supply situation creates a quite different policy
> problem.
> >
> >

> >> > In trying to keep what we do in this working group as close to the
> >> > world as possible consider the following history lesson. When the
> toll-free
> >> > telephone exchange expanded from 800 to 888, the FCC granted existing
> 800
> >> > customers a right of first refusal to secure their same telephone
> number in
> >> > the new 888 exchange. This right of first refusal was not extended to
> >> > existing customers when the 877 exchange was recently added. I would
> like to
> >> > thank Marilyn Cade and her colleagues from AT&T for verifying this
> >> > information for me.
> >> >
> >> > Using this history lesson as a starting point, could a right of first
> >> > refusal for those marks deemed famous coupled with the currently
> proposed
> >> > domain name dispute policy work to protect the interests of
> >> > domain name holders, small business owners, and large multinational
> >> > corporations? Any proposed right of first refusal would be limited to
> the
> >> > exact famous trademark itself, no sub-strings for the rather long
> of
> >> > technical and legal issues already reiterated on the list.
> >> >
> >> > Positive - There are no per se exclusions from the root.
> >> > Negative - A famous trademark owner would still have the potential
> ability
> >> > to abuse the system by initially securing valuable new domain name
> space in
> >> > the root in gTLDs outside their natural zone of expansion that did
> in
> >> > fact dilute their famous mark.
> >> > Positive - But this would only happen after a showing that a mark is
> famous
> >> > (we will worry about the definition latter).  If doing so protects
> consumers
> >> > from confusion, is this necessarily a bad thing? Plus any third party
> would
> >> > be able to challenge this right of first refusal if they feel that
> they have
> >> > a legitimate or superior claim to the domain name.
> >> > Positive - Perhaps the IP community would be willing to waive their
> right of
> >> > first refusal for domain name registrations in purely non-commercial
> domains
> >> > and rely solely on the dispute policy to resolve alleged
> infringements? If a
> >> > pattern of abusive domain name registrations surfaces in these new
> >> > non-commercial domains, we could always active the right of first
> refusal
> >> > mechanism.
> >> > Positive - This mechanism will allow for the controlled growth of the
> name
> >> > space, similar to the controlled growth of the toll free exchanges,
> we
> >> > fine tune the rules to meet circumstances which we could not even
> >> > contemplate if we tried.
> >> >
> >> > I believe the recent decisions in the clue.com and avery.net
> that
> >> > I posted to the list last week shows that it is in our best interest
> >> > reach a compromise among ourselves. I do not believe that costly
> litigation
> >> > is in anyone's best interest.
> >> >
> >> > I will be the first to admit that this possible solution is NOT
> perfect, but
> >> > I believe it is one of the best solutions to date that would meet the
> >> > minimal threshold requirements for all participants. I believe this
> as
> >> > close to a consensus compromise as possible based upon the rather
> diverse
> >> > viewpoints of the participants. What we as a group must realize is
> >> > until we enact some reasonable/workable safeguards, the likelihood of
> >> > new gTLDs being added are doubtful.
> >> >
> >> > The votebot will be operational by the end of the week. I will hold a
> sample
> >> > vote for all participants to become familiar with it.
> >> >
> >> > As always I welcome the groups comments - both positive and negative
> >> >
> >> >
> >> >
> >
> >
> >
> >--
> >m i l t o n   m u e l l e r // m u e l l e r @ s y r . e d u
> >syracuse university          http://istweb.syr.edu/~mueller/
> >
> >
> >
> >