[ICANN-EU] Domain Name IP

[Jefsey Morfin <jefsey@wanadoo.fr>]

To all,
I think we should clarify what domain names are for every candidate.
This is plainly an unnecessary issue, made a key issue by mistake.

IMHO Christoph is absolutely right.
>On 2000-08-22 02:29:59 +0200, Christoph wrote:
> > I think one of the main goals of a sensible DNS reform should be
> > making clear that trademark law can not and should not be applied
> > to host names.

And Thomas is unnecessary pessimistic.
>Sorry, but you are obviously dreaming.
>Trademark law _has_ _been_ successfully applied to internet domains,
>and it will be in the future.  You can like it or not, but changing
>this would require some 200 national states to change their
>legislation in favor of - what?  What pressure group, what industry
>interest?  Forget it.

Why?
Because there are laws and in this case laws are illegitimately used
by people not having understood what they are dealing with. This is
another case of lawyers messing around legal issues forgetting about
technical realities.

What is the common law? You register a string with an IP local body to
prevent it from being used in your area of business by someone else.
Exctly as registering a domain name.
1) this does not prevent anyone to use it in another territory - so you
     may want/try to register it worldwide and pay for it.
2) this does not prevent anyone to use in other business areas (classes)
     so you may want/try to register it in several classes and pay for it.
3) you own your name (private, company, etc..) and you may fight for
     its protection against disloyal use.
But:
1) this does not give you an ownership on the string just a protection
     against the string to be registered by someone else.
2) the string many not be registrable in other countries because it is
     a common world, a geographical world, or it is already in use, etc...

Now if a cybersquatter register "ibm.com" and do not use it, he is in
the same situation as you when you create a c:\ibm directory on your
PC. He will only breach the law if:
-  he runs some advertising about it (the advertising is illegal)
-  he sells non IBM stuff on line: he is disloyal
Otherwise there is absolutely no ground to give his ibm.com domain
name to IBM as IBM may not claim to lose money because of the
action of the squatter, only because they cannot use the DN. It is
exactly as if a "five flowers Inc." company required the 5 5th Ave. NY
building belong to them because otherwise the lose money.
IBM cannot even prevent him to have an empty site on line or to
sell his domain name: users are entering http://ibm.com: he only
has an IP address. Let assume he reroutes the calls to an IBM
site with some advertizing: it is a legitimate service to the public.
Or if I am lost in a city and enter a Bar to ask where is the near by
shop I look for, the shop owner could ask the Bar to close and
the Bar to be handled to him!!!!

Now the common law is also protecting privacy and free speech.
Let assume that a ".hate" gTLD exits for everything everyone
dislike: http://illness.hate, http://racism.hate etc.. A simple URDP
solution would be to give the winner the http://contested_string.hate
URL as well... and see if uses it.
Now take the five following addresses:
http://microsoft.com.fr
http://microsoft.my_site.com
http://misocroft.com (I like this one!)
http://I-sell-licro-soft.com
http://I-sell-micro.soft.com
what are the protected strings in each case?
Do you know a WIPO definition? I asked them...

IMHO a domain name is only a correspondence key
between a site and its users used in a semi private file
by a DNS private application which is one of the
method you may use to build your private file host.txt
which lists the IP address of the hosts around.

Again what is illegal is to publicly use, advertise and
take advantage disloyaly from a string registered
in the corresponding class for the concerned country.
If you are not happy with that you register the name
in every country in the online service class and you
chase me. Will Mr. Paul Corinthian, 5 West Drive,
North Lake, VA 22101, USA be denied to receive his
mail because there is a Sao Paulo Corinthiao soccer
team in Brazil? Please respect the law! and common
sense...

The future?
The future is obviously to come back to the common law
under the pressure of ridicule. This is will probably come
soon with a free gTLD usage and new addressing semantics
(did you try to read a domain in Chinese? did the WIPO
understand what a search engine is: if you use renault.com
you are a bandit, if you enter Yahoo.com, then renault you
are a nice prospect :-) !).

We may also have a (then famous) case where a Spanish
restaurant named Mercedes uses the rules of the URDP
to prevent Mercedes to sell cars because it owns the
name in the food class in Western Samoa. Judges would
then immediately understand that their present rulings are
absurd and are killing the law they want to protect. Just
remember the "Carterphone" case (Carter vs ATT) which
lead to deregulation be every governement everywhere in
the world and to the current telephone industry.

The only problem we have now (Thx to DNSO) is that
many "experts" are used as arbitrators who have to make
a living.

Cheers.
Jefsey