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RE: [wg-b] Just a thought

Title: RE: [wg-b] Just a thought

Dear Dr. Berryhill, (et al),

I congratulate you for a thoughtful, and strong, summarization of the issues, challenges, and dialog that has taken place in the past few weeks and months on the Famous Names/Trademarks issue. As the Entrepreneur in Residence in the Office of Advocacy at the U.S. SBA these past five years, I have worked on various Internet issues at the federal level, with a reasonable amount of success (FYI see http://www.business.gov; http://www.ace-net.org; and http://pro-net.sba.gov). I have also encountered my share of learning how to bring different viewpoints to common accord and I do not envy Michael Palage his role of Chair of the Wg-B. I have worked with the Internet since it was ARPA-Net and understand the explosive growth of different interests in the "wild-west" of the commercial Internet.

With that background, I concur completely with your sage advice to restrict the discussion of the Wg-B to the charter of the White Paper and the MOU between DOC and ICANN and the specific charter of Wg-B. We have been led far afield in the discussions on Famous Names and Trademarks, and we should have closed the discussion at the date we said it was closed. With the strong distrust in the community of "back-door deals" that brought us to the current ICANN structure, we should adhere to our own agreed schedules of when we discuss and when we stop.

Mr. Palage has a difficult task to take the various official Wg-B recommendations that were presented before the close of discussion and making them understandable and representative of the WG-B discussion. I support your recommendation that he stop any new discussion, and in particular, any discussion with un-named sources--that is in violation of the basic fundamental open process of ICANN. I urge him to quickly get on with the distribution of a draft of the official Wg-B comments and circulate it for comment. If new ideas come along, they will have to wait for the next cycle of the process.

I also commend the many thoughtful comments that have been provided from around the world on these topics. I know that they have provided me with a better understanding that my "techie/CEO" Silicon Valley knowledge of the world needs to be tempered with those expressed by representatives in other countries and in other areas of business.

Michael, let's get on with the wrap-up of the ideas presented before the deadline.

These comments are personal, and do not necessarily reflect those of Eric Menge, our official spokesperson for the Office of Advocacy. (He is on vacation, and can express his own views after he gets back.)

Best regards,

Terry Bibbens


-----Original Message-----
From: John Berryhill Ph.D. J.D. [mailto:john@johnberryhill.com]
Sent: Monday, May 15, 2000 3:20 PM
To: mpalage@infonetworks.com; Wg-B@Dnso. Org
Subject: Re: [wg-b] Just a thought

From: Michael D. Palage <mpalage@infonetworks.com>

> The purpose of a Working Group is to stimulate IDEAS.

...as opposed to generating them outside of the group with unidentified
persons and then saying, "let's do this."  If you want to just use the group
as a sounding board for ideas from the ether, then, yes, you'll get a lot of
criticism of those ideas.

I've got some great ideas.  For example, I'd like to see a cyber-cemetary
where the dearly departed would be memorialized in web pages that they could
design in conjunction with a funeral director, or which the family of the
deceased could have put up.  Rather than to market to the public directly, I
think an appropriate business model would be to market the service to funeral
directors, who could then retail it as a value-added service.  The cemetary
could include a "themed" community arrangement along the lines of Geocities,
or a "premium package" where the dearly departed would be given either their
own second-level domain name in a .dead top-level domain, or else as a
third-level domain along the lines of JohnDoe.deadfolks.com .

Now, regardless of whether you think that's a good idea, it has nothing to do
with the business of Working Group B, which ostensibly relates to the ICANN
charter provision to provide a protection mechanism for famous marks to the
extent feasible.

Famous marks are, by at least one legal definition, distinctive and
exclusive.  Hence, some kind of carve-out is possible, if there were an
objective means of filtering the millions of other marks to identify the
famous ones.  Run-of-the-mill trademarks, which are now under discussion
solely because of an off-topic proposal that was not put forth to the group
in time for the report deadline, do not have the distinctive and exclusive
properties that makes famous marks even somewhat amenable to some sort of
exemption mechanism or policies.  By bringing in run-of-the mill marks, there
are a host of attendant issues such as conflicting marks, registrations
subject to disclaimers and/or concurrent use limitations, the distinction
between word marks and stylized word marks, marks subject to cancellation
petitions, and so forth.

Now, it's beyond doubt that there are quite a few  trademark owners who will
agree with and voice support for any and all vague and nebulous "protection
for trademarks" policy that anyone anywhere proposes.  The mass email goes
out on the appropriate lists, and the bleating "I support ..." messages show
up on the ICANN comments list (including the guy that cut-and-pasted directly
from the mass email and included the angle-brackets in his "own" comments).

But not a single supporter of any measure will answer the question of why a
camel salesman should be required to give a first right of refusal to a
tobacco company over the use of the word "camel".

I also don't seem to understand why we shouldn't include obscene and
offensive words, as well as racially or sexually charged words for
consideration, as long as we are expanding the discussion from famous marks
to whatever else someone might be upset about.

>One of the rules that
> I was taught about brainstorming is that there are never any wrong ideas,
> only some that are better than others. Unfortunately there have only been a
> small handful of people that have offered solutions to the problems facing
> this Working Group, although there never remains a shortage of people
> willing to criticize the work of the handful of people putting ideas
> forward

"The problems facing this Working Group" assumes the existence of a problem
for which a new solution is required.  The UDRP is believed to be working
marvelously well for those using it.  Heck, I've had two domain name owners
transfer their domain names to my clients before the UDRP proceedings even
got to a decision, because they wanted to avoid a bad faith determination.
It's not broken to the extent that a radically new and different approach to
domain name registration is required to "fix" "the problems".

On the other side of the coin, I have also seen first hand the lengths to
which folks like Rohn Industries (www.rohn.net) will go to in order to
prevent an ordinary guy, Rohn Price (www.rohn.com), from using his own name
for a non-commercial religious website.

Non-famous trademarks include a heck of a lot of common surnames,
geographical place names, and common English words.  There is absolutely no
reason for an a priori policy that presumes that the use of a common surname,
geographical place name, or common English word is going to be used for
trademark infringement.  If the "problem" is that sometimes trademark owners
don't get the domain names that they want, and they find that the domain name
is being used for a perfectly legitimate purpose, then that's just tough for
them - they do not have a right-in-gross to an alphanumeric string, and no
government agency ever granted them one.

I proposed a WIPO-administered examination process for famous marks, which
was in accord with the "problem" given to the working group upon which to
work, and would include some kind of factual determination of the sort
required to identify a famous mark.  Others have proposed various criteria
for famous marks, but all with the point of figuring out who qualifies and
who doesn't in accordance with a set of objective tests.  Just because a
group of trademark representatives have expressed a desire to enact a new
policy for *all* marks, that does not become a "problem" of the working group
on "famous marks".  The UDRP has only been in effect for a couple of months.
After the gyrations involved in getting the UDRP off of the ground, who has
made the determination that it is not sufficient and why?

Why is it not an option or a "contribution" to point out that a new fix may
not be needed, and may lead to further unanticipated "problems"?

A prime example of what someone thought would be a "good idea" and which has
turned into a joke, can be found at www.fibershield.net .  Fibershield.net
was the first domain name to have been "cancelled" under the UDRP.  Not a
single one of the legal geniuses on the UDRP drafting panel ever stopped to
think of what it means to "cancel" a domain name, and I have not been able to
find anyone on the drafting committee that can explain what in blazes they
were thinking when they designed a malpractice tripwire into the UDRP.  It
turns out that the lawyers for the complainant in that dispute are pretty
upset that they were led to believe that opting for "cancellation" would mean
that the domain name couldn't be re-registered, but they have waived what
rights their client may have had to the domain name due, no doubt, from a
"constructive brain storming session" that nobody wants to take
responsibility for.

If people are worried about protecting their legal rights, then we have
developed systems for dealing with violations of them.  These systems are not
the result of "brainstorming sessions"  - they are the result of hundreds of
years of experience in dealing with the way that people actually behave.  I
have no doubt, Michael, that your anonymous friend is a bright fellow.  I
also have no doubt that there is not one person who is bright enough to come
up with a cure that is worse than the disease.

As has been pointed out in response to the part of your proposal for the
domain name registrant to cough up cash in response to every complaint, that
is simply a mechanism for bleeding domain registrants dry and/or catching
them while they are away from the home or office for a few days.  I'm sorry
if you find that to be a non-constructive point to make, but it would be a
ridiculously destructive policy to implement.


Bibbens, Terry E..vcf