Re: [wg-review] 11. IDNH Centers of Interest

[Sandy Harris <sandy@storm.ca>]

Elana Broitman wrote:
> 
> It is a must to define domain and determine the rights conferred in the registration
> process.  There are no less than 100 well reasoned court opinions on property vs.
> service rights and all of them come up with different conclusions.  This wg can
> define them.

What makes you think that? If, as you say, the courts find this difficult, why imagine
that we can do better? 

> And even if the BoD does not like the definition, I am convinved that
> this brain trust will have such sound reasoning that the definition will survive.

You'd have some difficulty convincing me of that.

As far as trademarks go, I think everything that needed to be said was covered
in a 1996 letter of John Gilmore's:

http://www.toad.com/gnu/dns-economist.html

| Trademarks are registered in a system that permits many companies to share a name
| legitimately without interfering with each other, such as Sun Photo, Sun Oil and
| Sun Microsystems. Domain names only permit one user of a name; there is only one
| sun.com, which Sun Microsystems registered first. Neither lawyers nor governments
| can make ten pounds of names fit into a one-pound bag. 
|
| Like trademarks, Internet names have traditionally been assigned first come, first
| served. Users of these names must be permitted to use any unassigned name unless
| they use it in a way that actually infringes on a trademark. If roadrunner.com sells
| cartoons or Acme Anvils, it is in trouble; if it sells computers, Warner Brothers
| has no legitimate complaint. Network Solutions Incorporated (NSI) has shown itself
| poor at adjudicating such complaints. That is a job for the courts, which have
| procedural protections for the innocent as well as proper punishments for the
| guilty.

I'd say ICANN has now shown itself poor at handling this as well, bodacioustatas.com
being the most obvious example I know of. So either we should drop the URDP altogether
or rewrite it so that it applies if and only if the complainant has an obvious case.
Whenever there's any question at all, punt to the courts since they're designed to
handle such questions, ICANN isn't and WIPO is far from impartial.
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