Re: [atlarge-discuss] Democratic process (was Re: [atlarge-discuss] encouragement)

[Jeff Williams <jwkckid1@ix.netcom.com>]

Chris and all stakeholders or other interested parties and members,

NameCritic wrote:

> hello everyone. I haven't been around for awhile, but I decided to rejoin
> the effort.

  Great!  Glad to you have you back!  It sure has been awhile!

>
>
> I have a question, as I am just catching up on the discussion regarding the
> use of the domain name icannatlarge.org and what seems to be some worry
> about a trademark infringement?
>
> Am I understanding the conversation correctly?
>
> I'm no lawyer, although those on the list that know me will tell you I have
> a good understanding of the UDRP, Domain Name Disputes in general, and what
> constitutes a trademark violation.
>
> Truth is anyone can make a claim that the use of their name within a domain
> name is a violation. Claiming it and proving it are two completely different
> things.

  Precisely one of my points earlier in this debate.

> ICANNatLarge.org would be no more a violation than ICANNSucks.com.
> ICANN suing over this name would give them more bad press than they need
> therefore even a threat would be futile at best.

  Exactly right and a good point!

> As I understand it they
> have not threatened, but given permission. That would also make any later
> attempt an act of futility.

  Also correct and one of the points I had made earlier as well.

>
>
> Should someone, anyone, panelist or not, seek legal advice on any issue that
> could affect them adversely? As everyone seems to agree, of course they
> should. But I would suspect that any lawyer who advises that this domain
> name would end up on the wrong side of a legal dispute isn't familiar with
> domain name disputes even though he may be familiar with trademark law.

  Good point here as well.  The predominance of actual TM filings
on TM's for domain Names is a dismal and confusing affair to be sure,
but the majority of them are dismissed.  Those that are not,
usually favor the original registrant or registrant of record.
This is however not so with UDRP filings.

>
>
> I know, some of you lawyers out there will say that knowing trademark law
> automatically means that you understand the nature of domain name disputes.
> It doesn't. The days of trademark law being way over-extended, well beyond
> it's boundaries, during domain name disputes isn't over, but won't last that
> much longer.

  Very good points here as well.

>
>
> Anyway, as I said, I definitely am short on information having just rejoined
> these discussions and may have missed a lot, rendering my point moot. Be
> your own judge of that and update me.

  Your doing pretty well so far!  >;)

>
>
> btw, hello Joanna, Bruce, Jeffrey, and everyone else still around that I
> know, even those that didn't miss my absence at all.

  Hi again Chris!  Welcome back!  >;)

>
>
> I think I'll go search up some really cool domain names that have ICANN in
> the name. I have one. I went to that registry, can't remember the name of
> it, where you can create your own tld and domain name to go with it on the
> fly about 8 months ago and filed PinkyAndTheBrain.ICANNBoD to commemorate
> their "I'm gonna take over the world" mentality.

  ROFLMAO.  Make sure when you do register that Domain that you
notify the ICANN staff and attorneys so that they can piss and moan
but do nothing in regards to TM filings.

>
>
> I'm sure they have improved in leaps and bounds by now and are completely
> transparent and democratic as they said they would be. To find out any
> different would shake the foundations of my belief in justice and humanity
> in general.

  Nice bit of accurate and appropriate sarcasm here!  But of course
you were always good a that!  >;)  Well done!

>
>
> Chris McElroy aka NameCritic
>
> "If computers get too powerful, we can organize them into a committee --
> that will do them in."
> Bradley's Bromide
>
> ----- Original Message -----
> From: <espresso@e-scape.net>
> To: <atlarge-discuss@lists.fitug.de>
> Sent: Monday, September 23, 2002 11:59 AM
> Subject: [atlarge-discuss] Democratic process (was Re: [atlarge-discuss]
> encouragement)
>
> Hello, all,
>
> Perhaps my comments will be seen by some as unnecessary or undesirable. If
> so, I apologize. However, I am far too busy to continue conducting multiple
> off-list discussions of matters which, to me at least, seem clearly to
> belong here where all members can see them.
>
> In one off-list message, I was taken to task for suggesting that Joanna had
> been injudicious in wanting to partly-cancel balloting already in progress,
> thereby partly disenfranchising those who had already cast their votes. It
> was implied that
> - that the legal advice was sound and fully justified by the circumstances;
> - that Joanna was empowered to do as she saw fit to protect herself even at
> the cost of the democratic process within this group;
> - that I as a member of this group have no right to question or offer
> comments on the decisions of a panelist.
>
> Much as I sympathize with the fear of litigation, I disagree with all three
> of those propostions.
>
> 1. As has been pointed out, the use of "ICANN" as part of a domain name or
> organization name does not in itself constitute trademark infringement, let
> alone entail terrible penalties. This area of law is perhaps more likely to
> give rise to suits (even frivolous ones) in the United States than elsewhere
> but
> - we as a group have our "headquarters" outside the U.S.A. since effectively
> we exist only as a discussion group based in Germany, where frivolous suits
> are not encouraged by the courts
> - we as a group have ICANN's blessing (however temporarily that may be) to
> use their name in our own
> - we as a group have no legal existence at the moment and it is clear that
> our Panel and its individual members have absolutely no control over us,
> individually or collectively, so they cannot in law be held responsible for
> the behaviour of others within the group (I.e., it is *not* the same
> situation as for elected directors of an entity with legal status as a
> "moral person", where directors are liable for the conduct of the
> organization as a whole.)
> - the whole area of trademark and copyright law is in a state of flux and
> this hypothetical lawsuit falls within a grey area of jurisprudence, and
> it's probably academic anyway since I would hope we'd collectively decide to
> comply with the first "cease and desist" letter from ICANN's lawyers
> indicating they'd reversed their position of tacit and explicit acceptance.
>
> 2. I was asked:
> >>As a panelist, what would you do?  Defer your risk of individual
> >>liability (and by extension that of all the panelists) to a
> >>decision by the membership?
> and I replied:
>
> >Absolutely! There is surely no difficulty in the Panel collectively issuing
> a motion to have the balloting cancelled and a new vote held which does not
> include the contentious item, including an explanation of why they feel this
> must be done, and asking the membership to ratify that decision by an e-mail
> ballot. I can't see more than a handful of lunatics amongst our 1000+
> members refusing to see reason. Once the resolution is ratified, there is no
> problem at all about sending a new ballot on the name issue.
> >
> >Given that ICANN itself thus far supports our use of their name in our
> domain name, I don't see that the few extra days and attention to due
> process would open Joanna or the other Panelists to extra jeopardy. In fact,
> this whole issue would have been dealt with already and the new balloting
> under way by now if the Panel had taken that route.
> >
> >My position is simple: if we do not conduct our own affairs properly and
> democratically, there is no legitimate reason for us to exist. We will have
> no credibility with the organizations we are hoping to influence and no
> chance of attracting anyone but the most inexperienced and naive Internet
> users to participate in the effort.
> >
>
> 3. As for the question of whether an ordinary member of the group like
> myself has the right to comment on and/or disagree with the actions of
> somebody holding an elective position, it should be self-evident that
> freedom of expression and the responsibility of the elected to the elected
> are the cornerstones of democracy. Without them, what you have is a
> pseudo-democratic totalitarianism only inches away from full-blown fascism.
>
>  I doubt any of us needed to join this group to see that sort of thing in
> operation, and I have absolutely no desire to belong to --let alone work on
> behalf of-- an organization which chooses to operate that way.
>
> May I suggest that the Panel put forward for ratification an immediate
> resolution to:
>
> A. adopt _Robert's Rules of Order_ or any other established manual of
> procedure (Bourinot, Hansard, or whatever else you like) as the basis on
> which this organization-to-be will conduct its affairs henceforth;
>
> B. EITHER count all ballots in the vote on a name *without* dropping
> "icannatlarge.org" and publish the tabulated results (followed, if need be,
> by a resolution to set aside that ballot and vote again);
>    OR cancel that vote and destroy all ballots and tabulations without
> further ado, and send out a new ballot without the "icannatlarge.org" option
> so as to obtain an unskewed result;
>
> C. specify the procedure whereby the Panel or the membership can put forward
> future resolutions and conduct balloting in accordance with accepted
> democratic norms.
>
> It's only my opinion, of course, but I believe that without immediate
> progress to clarify how we are to conduct our affairs properly, this group
> is doomed to futility and the kind of ad hoc decision-making from the "top"
> which negates our claim to be seeking democratization of Internet
> governance.
>
> Sincerely,
>
> Judyth
>
> ##########################################################
> Judyth Mermelstein     "cogito ergo lego ergo cogito..."
> Montreal, QC           <espresso@e-scape.net>
> ##########################################################
> "A word to the wise is sufficient. For others, use more."
> ##########################################################
>
> ---------------------------------------------------------------------
> To unsubscribe, e-mail: atlarge-discuss-unsubscribe@lists.fitug.de
> For additional commands, e-mail: atlarge-discuss-help@lists.fitug.de
>
> ---------------------------------------------------------------------
> To unsubscribe, e-mail: atlarge-discuss-unsubscribe@lists.fitug.de
> For additional commands, e-mail: atlarge-discuss-help@lists.fitug.de

Regards,
--
Jeffrey A. Williams
Spokesman for INEGroup - (Over 127k members/stakeholders 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: 214-244-4827 or 972-244-3801
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208



---------------------------------------------------------------------
To unsubscribe, e-mail: atlarge-discuss-unsubscribe@lists.fitug.de
For additional commands, e-mail: atlarge-discuss-help@lists.fitug.de