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[ga] Re: July 9 ICP Meeting

Russ and all,

  Hi Russ, interesting and thought provoking post indeed.  I have
some concerns that I would like to share, that I am sure others
will have with some of your definitions/suggestions, as many have
already on several occasions, provided the WIPO, ICANN, and the
DNSO.  (See more detail below your comments here Russ)

Russ Smith wrote:

> I probably will not be able to join the meeting via telephone so I am
> submitting comments via e-mail.
> -Definition of "abusive" registration, cybersquatting, and cyberpirate (see
> below).  The WIPO report discusses the common usage of these terms but fails
> to give full range of popular definitions.  Cybersquatting is sometimes
> applied to those holding on to a domain in an effort to sell it for a high
> amount of money whether there trademark implications or not.

  And WIPO's definition as you state it here is worse than incomplete
but it is incorrect and abusive or offensive in and of itself in a market driven

economic global economy.

>  Cyberpirate,
> in addition to the definitions given to the WIPO report, is also applied to
> attorneys who attempt to 'reverse hijack' a domain.

  And this definition is at least incomplete.  There are other kinds or
"Cyberpirates".  Some have been around for some time now and
have been hoarding IP addresses or stealing private initiative
Protocol development, for instance.  Also many have been stealing
or otherwise improperly using Domain Name Registration information.
Well you get the idea, the list is nearly endless...

> The term "abuse" has
> the potential for an even wider range of definitions given it's use on the
> Internet relating to junk e-mail and other Internet issues.  The term has
> all kinds of connotations in the Internet world.

  Agreed.  And one persons abuse is anothers enjoyment...

> -I also have a question about the definitions.  A common case is a
> registrant who registers a generic name a couple years ago, gets a few
> offers, and then decides to sell the name (which also happens to be a mark
> owned by several companies).  Does this fall within the definition of
> "abuse" or "bad faith"?

  According to WIPO and it appears the WG-A's Preliminary Report, both
is the appropriate answer.  Of course this is both not reasonable but
down right ridiculous to boot...  In terms of a registration of a Domain Name,
abuse  and bad faith is a very slippery slope indeed.  For a few examples:
Estherisanazi.com be abusive or in bad faith or both?
My answer:  Abusive, yes, bad faith, not necessarily, both very remote.

>  If things like intent when registering, pattern of
> practices of the registrant, interest in the name by registrant, definition
> of "misleadingly similar," etc. are part of the definition how is it decided
> which cases fall into this category?  Who makes the determination and who
> gathers the information needed to make the determination?

  THese are indeed very good questions, and they are not defined at all
distinctly or definitively in either Chapter 3 of the WIPO "Final Report"
Recommendations or in the DNSO WG-A's Preliminary Report.

> Russ Smith
> http://consumer.net
> http://domainia.org
>   (1) The registration of a domain name shall be considered to be abusive
> when all of the following conditions are met:
> (i) the domain name is identical or misleadingly similar to a trade or
> service mark in which the complainant has rights; and

  How is misleading defined definitively?  If it is not done so, than this
requirement needs allot of work and cannot be used as a "Condition".
Also how does this jive with "Classes": of Marks?  On it's face, it doesn't.

> (ii) the holder of the domain name has no rights or legitimate interests in
> respect of the domain name; and

  No adequate definition of "Rights" here...

> (iii) the domain name has been registered and is used in bad faith.

  Again, the term "Bad Faith" needs clarification...

> (2) For the purposes of paragraph (1)(iii), the following, in particular,
> shall be evidence of the registration and use of a domain name in bad faith:
> (a) an offer to sell, rent or otherwise transfer the domain name to the
> owner of the trade or service mark, or to a competitor of the owner of the
> trade or service mark, for valuable consideration; or

  This is outrageous.  The "Intent" of anyone holding a similar or seemingly
similar Domain Name to a Mark holder of that similar note MAY be doing so
in good faith....

> (b) an attempt to attract, for financial gain, Internet users to the domain
> name holder’s website or other on-line location, by creating confusion with
> the trade or service mark of the complainant; or
> (c) the registration of the domain name in order to prevent the owner of the
> trade or service mark from reflecting the mark in a corresponding domain
> name, provided that a pattern of such conduct has been established on the
> part of the domain name holder; or

  Very slippery slope here...

> (d) the registration of the domain name in order to disrupt the business of
> a competitor.

  Agreed entirely!

Jeffrey A. Williams
Spokesman INEGroup (Over 95k members strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-447-1894
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208