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[wg-b] RE: Sunset for sunrise



> Michael Graham: Wednesday, May 10, 2000 11:20 AM spouted;

> Presuming as much (incorrect as I may be), I believe it is to 
> all parties' interest to establish a means for protecting 
> trademark owner and consumer interest in domain names which 
> incorporate or are "variations" of their trademarks.  (I will 
> note, however, my discomfort with the use of the term 
> "variations" but admit my inability to come up with a better 
> term or description at the moment  what the comment period 
> might result in).  I certainly don't believe this is a 
> "silly" effort or that the goal of avoiding conflict should 
> be displaced merely because there are alternate means of 
> enforcing these rights.  I don't see S+20 creating any new rights.

You are fighting from quicksand here Michael. Conflict avoidance requires prudent measures, on part of the registrant. It does not require apriori restraint on part of the registry. It is a matter of fact that such apriori restraint may make the registry vulnerable to liabilities, which they certainly  may not wish to be responsible for. The registry would very much like to remain a neutral third-party, solely an implementation agent.

Currently, the registrant has the right to make the mistake of conflicting with a mark. Universally, the courts and legal systems of the world have made it so, with good reason. Apriori restraint (S+20), on part of the registry, removes this right from the registrant and places the responsibilities and liabilities squarely on the registry. This places the registry in the unenviable position of being a responsible party having to defend their stance against both the mark holder and the registrant, while being singulary under-equiped for such responsibility.

Under these conditions, who wants to be a registry? All of this liability for the dubious income generated for registering the domain names? I suspect that this is, in part, the reason that we don't have more registries. Only NSI, protected by USG umbrella, can afford to step into this mess. It can be argued that S+20 does not only represent apriori restraint on names, but is, of itself, apriori restraint on the [ICANN] registry business overall. It makes the liability burden, of being a registry, so onerous that it will supress the formation of the entire industry. (Before anyone makes any other claim, registrars are simply agents of the registry).