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RE: [wg-b] Creation of Famous List

It sounds like I missed a comment period while engaged with paying clients.
My views are well known and published

With the present churn regarding trademark rulings and issues, it is
becoming ever more vital that the registry remove its business operation as
far as possible from these contentious issues. The registry should not
support any form of arbitration directly or otherwise embroil itself in that
political debate. It should require the presentation of a court order, from
a court of competent jurisdiction, prior to acting on any of these issues,
and otherwise remain strictly neutral. It is the registryís prime directive
to maintain the stability of its operation, above all else. With this in
mind, the only defensible strategy is to follow current legal dictates
exactly, not try to make new law or support proponents of making new law,
such as WIPO. In short, a root registry should recuse itself from being
proactive in these legal issues. It must remain steadfastly neutral.

It is the registryís business to register names, not to adjudicate them. It
is the courtís business to adjudicate. If a court of competent jurisdiction
wants to impose some sort of filtering on the names, that the registry will
use, then it must do so explicitly, via court orders.

The entire position paper was submitted to BOTH WG-B and WG-C. I wasn't
aware that I would have to continuously reiterate MHSC positions. I see
nothing having occured to change this particular MHSC position. Lack of
commentary, in the last round should NOT be construed as MHSC abdication of
position. This position clearly delineates that a court of competent
jurisdiction is authoritative and NOT necessarily WIPO (WIPO not being a
court, in ANY jurisdiction).

As a private commercial concern, MHSC will NOT accept liabilities without
quid pro quo. Mandated liablities, from properly authoritative bodies (force
of LAW, not civil process) are usually associated with contingient
immunities (transfering collateral liabilities to the authoritative body).
Neither ICANN not WIPO are in a position to assume such authority (even if
ICANN does get the DOC grant this September, they are still not a regulatory

Please let me clarify, MHSC doesn't care about whether or not a "Famous
Marks" list exists, only that it is authoritative, or not, in a manner in
which the Registry is not held liable for its enforcement. Technically, it
is trivial to enforce such an exclusions list. That is not the issue. The
content of such a list is also not the issue. But, I'm here to tell you
that, if you want such a list, you had better make it authoritative, in LAW,
and not in whim. Otherwise, it will not happen and the registry that tries
to enforce it will be sued to within 2 microinches of its corporate life, in
short order.

> -----Original Message-----
> From: owner-wg-b@dnso.org [mailto:owner-wg-b@dnso.org]On Behalf Of
> Michael D. Palage
> Sent: Saturday, March 25, 2000 3:47 PM
> To: Milton Mueller; Mikki Barry; wg-b@dnso.org
> Subject: [wg-b] Creation of Famous List
> Milton if you read the status report that I sent to the Names
> Counsel you
> will have found that WG-B has not officially backed the
> creation of a famous
> marks. However, if you look at the position papers submitted
> during the
> comment period you will find that most, NOT all, support the
> creation of a
> famous marks list. Additionally, in Cairo the registrars
> which previously
> had opposed the creation of a list were willing to back the
> creation of a
> famous marks list by WIPO as long as it was used as part of a
> sunrise period
> and not as part of a filtering mechanism. If you do the math, you will
> probably find that there is now enough Names Counsel votes to back the
> creation of a list.
> As previously stated, a report needs to be submitted to the
> Names Counsel by
> April 15th. Based upon the composition and history of this
> working group I
> serious doubt that we will arrive at a consensus document by
> then. Instead,
> the report that will be submitted will detail the history and
> progress of
> this working group and the remaining areas of disagreement.
> Yes I have been following the UDRP.  Although there are some
> decisions that
> I question, I believe it is working.
> I respect that you may disagree with the registrars proposal
> about limiting
> the use of the sunrise period in certain domains. If the
> non-commercial
> constituency thinks it is of no value, I will discuss with
> the registrars
> removing it since it would most likely further increase our changes of
> reaching a compromise with the Intellectual property constituency.
> I understand your concerns about WIPO and I am working on
> some proposals
> that I will share with the group in the next couple of days that may
> address, but not fully resolve, these concerns.
> In Cairo, the registrars individually and collectively met
> with the members
> from the Intellectual Property Constituency, some Business
> constituency
> members, and representatives from the Registry Constituency (NSI). In
> addition, I have discussed the progress of these negotiations
> with Kathy
> Kleiman, Eric Menge and several other individuals from the
> ccTLD and ISP
> community. Most of these constituencies and individuals are
> now evaluating
> their next step and should be getting back to me shortly. I
> look forward to
> receiving their feedback in an effort to build further
> consensus prior to
> the April 15th deadline. After Cairo the Registrars held a telephone
> conference and quickly agreed on a compromise position. I am
> drafting that
> revised document for the registrars as I respond to the
> various WG-B posts
> that I receive. It is the goal of the registrars to building
> a registration
> authority consensus for the document that they are preparing, since it
> opposed the use of filters in the registration process a
> common theme among
> all registration authorities.
> I hope that I answered all of your questions and addressed
> your concerns.
> Mike
> P.S. I apologize for the flood of e-mail that has hit most list
> participant's mailboxes over the past couple of days.
> However, I thought it
> important to apprise the group of the looming deadline and
> the efforts of
> certain constituencies to forge consensus. Failure to do so
> in my opinion
> would not be keeping with the open and transparent process by
> which ICANN is
> suppose to follow.
> -----Original Message-----
> From:	Milton Mueller [mailto:mueller@syr.edu]
> Sent:	Saturday, March 25, 2000 5:46 PM
> To:	mpalage@infonetworks.com; Mikki Barry; wg-b@dnso.org
> Subject:	Re: [wg-b] WG-B Deadline
> ----- Original Message -----
> From: "Michael D. Palage" <mpalage@infonetworks.com>
> > issues. They like the idea of WIPO creating the list
> because it is an
> > inter-governmental agency that cannot be sued. Therefore
> immunity starts
> > with the creation of the list and they are further
> insulated if ICANN
> > mandates it upon registration authorities.
> When did this working group decide that there would be ANY list?
> It should be evident to anyone watching the UDRP results that
> trademark
> holders are being given quite extensive protection. There is
> no need for any
> special protections for famous marks, whatsoever.
> > However, the Registrars are
> > sensitive to the Non-commercial and free speech concerns and have
> > preliminarily backed excluding charter non-commercial
> top-level domains
> from
> > this sunrise program.  Therefore their concerns should be addressed.
> They are not addressed. Any creation of a global magic words list,
> unencumbered by law, is a serious danger to free expression advocates.
> > The concerns of the small businesses should also be
> protected if WIPO uses
> > discretion in creating the list in a responsible manner,
> which there is no
> > reason to believe that they shouldn't.
> Then you haven't paid any attention to WIPO's record in the
> past two years.
> > I understand that this insight is less than ideal to
> several people on
> this
> > list, but at least it is an effort among certain
> constituencies to put
> aside
> > past differences and move toward a common ground.
> I see only two constituencies represented here, Michael:
> yours and the famou
> smark holders.