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RE: [wg-b] me thinks thou dost protect too much ...

I would like to respond to your statement that, "you'd rather use
significant legal muscle and political clout to impose what amounts to
a mathematically impossible mapping of the space of existing marks
onto the space of domain names, acting as though the top-level unique
identifier is the SLD rather than the TLD."

I don't know who you are referring to by "you." The only participation I or
the company I work for has had in any of these matters has been my
participation in this list-serv and voting on various matters as part of
wg-b. To that extent, my legal muscle or political clout are not different
from yours and any business interests you may represent. I do not represent
or speak for trademark owners generally or for corporate interests generally
(and I doubt anyone can inasmuch as those interests differ widely within in
each constituency), and therefore I resent being accused of things done or
said by others that you may take offense with.

I am not suggesting a one-to-one correspondence between domain names and
trademarks. Certain marks are famous worldwide. They mean essentially one
thing to hundreds of millions of people throughout the world. And those
people will use their knowledge of trademarks to try to find what they are
looking for. You may call it ignorance or naivete, I call it common sense,
but either way it's reality. Allowing the owners of such marks the
opportunity to monopolize those marks in some TLDs can have real world
commercial benefits to all concerned, I believe, if tailored appropriately.


> -----Original Message-----
> From:	Mark C. Langston [SMTP:mark@bitshift.org]
> Sent:	Monday, April 10, 2000 11:44 AM
> To:	wg-b@dnso.org
> Subject:	Re: [wg-b] me thinks thou dost protect too much ...
> On Mon, Apr 10, 2000 at 10:02:16AM -0400, Hartman, Steve wrote:
> > I diagree with your statement that ownership of domains does not bear on
> the
> > Internet's integrity. To give one example, Nabisco received numerous
> > complaints at one time from consumers whose children, presumably looking
> for
> > the producer of Oreo cookies or the information about them, typed in
> > <oreos.com> only to be pointed to a pornographic site. The usefulness
> and
> > value of the Internet as a communicative tool is decreased by that use.
> The
> > issue, to my mind, is whether the costs of allowing certain domain names
> to
> > be monopolized in some TLDs are justified by the benefits.
> > 
> The usefulness and value of the Internet as a communicative tool will
> be decreased by the IP interests superimposing their political and
> financial will onto a functioning technical system.
> Consider:  Right now, we have:
>  namespace -- a term describing a set of identifiers whose sole
> purpose was to provide a ***hierarchical*** indexing of dotted-quad
> addresses.  In namespace, for the most part (but not always) there was
> to be a one-to-one, or at worst, a one-to-many or many-to-one mapping
> of namespace identifiers to dotted-quad addresses.
>  TMspace -- a term describing a set of identifiers that embody a large
> many-to-many mapping of labels to entities.
> ...and now, because the registrars aren't marketing domain names as
> unique within a TLD, but are in effect making the SLD the top node of
> the tree of unique identifiers within a subset of names, the IP interests
> want to force that many-to-many mapping onto a system that de facto is
> not organizaed that way, and to hell with the consequences of doing so.
> The fact that some people prefer to try to guess at domain names by
> assuming every entity on the planet has a domain name in the form of
> "canonicalproductname.com" is ignorance and naivete on the part of the
> user.  To pander to that ignorance by trying to map two incongrous sets
> onto one another is just compounding that ignorance.
> Or, from another angle:
> There are a limited number of words in the English, and in other,
> languages (I will use English in my examples because it is both my
> native language and the Lingua Franca of the Internet at the moment).
> The governmental offices that deal with IP interests worked around
> this problem by developing product category boundaries and
> geographical boundaries which limit the reach of trade and other
> marks.  While I cannot presume to speak for how an IP interest must
> feel about these limits to the reach of their mark, I can say as an
> outside observer that the system works, and works well.  [NOTE: By
> 'outside observer' in the previous sentence, feel free to read,
> 'consumer', because that's exactly what I am.]
> Now, we have namespace, which does not on the surface appear to have
> these limits and boundaries.  But in reality, they do: The TLDs
> themselves are natural boundaries and serve to uniquely identify those
> SLDs under it.  However, a certain registrar has chosen to blur that
> distinction in its marketing, and the flood of new registrars that
> ICANN has allowed to be created have chosen to carry on that
> tradition.  So, now that we are faced with the impending introduction
> of new gTLDs, everyone's panicking and assuming that these gTLDs will
> be marketed in this manner as well.  So, instead of attacking the true
> problem -- that the registrars have deigned to market the TLDs in such
> a way that the strings are completely irrelevant, and thus confused
> the public into thinking that everything is ".com" -- you'd rather use
> significant legal muscle and political clout to impose what amounts to
> a mathematically impossible mapping of the space of existing marks
> onto the space of domain names, acting as though the top-level unique
> identifier is the SLD rather than the TLD.
> This is how I perceive the entire issue, and it doesn't sit well with
> me.  It is, to me, a poor solution to the wrong problem.  The IP
> interests could have had this problem solved by now, at considerably
> less effort and expense, if you'd chosen instead to work with the
> registrars and help them see the benefit in marketing TLDs as unique,
> rather than as 'Yet Another .com.'
> Of course, now the registrars will chime in and complain that this would
> go against their profit model.  Somehow, the ccTLDs seem to manage
> without trying to be the next catch-all for SLDs that already exist in
> .com.  Some, in fact, are trading on the uniqueness of their TLD.
> While I don't necessarily approve of the particular instance, the .tv
> ccTLD is a good example of what I mean when I refer to 'trading on
> TLD uniqueness'.  Even at their exorbitant prices, I saw a report this
> morning stating that the registry for .tv had sold $300,000 worth of
> domain names.
> > Cybersquatting of well known names fosters miscommunication and is
> > exploitative.Who should be entitled to reap the benefits (whatever they
> may
> > be) of names such as <nabisco.com> or <billgates.com>? Those domains
> have
> > recognition value because of the efforts of Nabisco and Bill Gates. If
> > others believe they are entitled to own them, they ought to bear the
> burden
> > of demonstrating a right or consumer benefit to use those domain names
> > greater than Nabisco's or Bill Gate's and the confusion such
> unauthorized
> > use causes.
> > 
> > Steve Hartman
> > Nabisco, Inc. 
> Steve, it's not my contention that IP interests shouldn't be allowed
> to have _any_ registration.  Indeed, I'll support Nabisco's efforts to
> own oreos.com.  It's the heavy-handed, across-the-board, "we're going
> to prevent ownership of the string 'oreos' in all 240+ TLDs" approach
> that prevents anyone, for any reason whatsoever, from every owning
> oreos.ANYTHING that I take issue with.  It goes against common sense,
> it runs contrary to reason, and it ignores years of thought in TMspace
> as regards the limits of scope for marks.
> There's a place for everyone in namespace, believe it or not.  There's
> a reason behind every name registration, and it's not always bad faith.
> Right now, the tide of opinion in this working group and in ICANN in
> general seems to be that ANY registration that has substring overlap
> or a significantly small linquistic distance to an existing mark is
> 'cybersquatting'.  Even in the WIPO arbiter's reports, assumptions
> are being made about the content of websites, the _existence_ or 
> _nonexistance_ of websites or other services within a domain, the
> corporate status of the owner, and so on as indicators of bad faith
> registration.  
> If things continue in this manner, there will one day be no room for
> anyone but corporations.  While this may not seem like a bad scenario
> to you, it's devastating to the Internet's usefulness and value as a
> communicative tool.  Two things to keep in mind:
> 1)  Domain names are not, should not be, and were never meant to be,
>     a communicative tool qua domain names.  It is only that marketing
>     has made it so.  Those of you who sincerely believe that marketing
>     departments have any but the most tenuous grasp on reality, please
>     raise your hands.
> 2)  It's all about the content.  And it's all about the use.  And the
>     content can be communicated by means other than web pages.  But
>     it's beyond any arbiter's legal power to accurately determine the use
>     to which the IP address(es) answering under a particular SLD have
>     been put, and confiscation of domain names in addition to the
> alteration
>     or elimination of content when the name is not an exact match for
>     the mark in question is confiscation of property, and in my opinion
>     a significant overstep of authority.
> -- 
> Mark C. Langston
> mark@bitshift.org
> Systems & Network Admin
> San Jose, CA