Re: [ICANN-EU] Re: Don't waste your endorsement

[lutz@iks-jena.de (Lutz Donnerhacke)]

* Jeff Williams wrote:
>Lutz Donnerhacke wrote:
>> As a non-lawyer I noticed that every non-de-jure solution will fail due
>> to 'evil' advocates. As a technican I usually do not try to apply an
>> impractical solution. Sorry, but this is a reason for candidating.
>
> Any time you use the word "every" or "always" you are usually wrong, or
> mistaken. This is one of those times.

Wish you were right.

> Non-de-jure solutions can be applied or determined if open discourse is
> practiced.  ICANN has not done this very well as many have pointed out.

How should such a discourse impress a regional judge dealing with a
trademark case?

>> Me yesterday messages tried to show, that every new TLDs will run in
>> the same juristic problems and futhermore create new ones in the
>> existing structure. That's my reason to oppose new TLDs. They can not
>> solve those problemes by new contracts. Those new contracts will be
>> ignored immediately.
>
> FIrst of all I don't see any evidence of this necessarily being the case.

Look at court decisions. Contracts violating (inter)national/regional law
are immortal and therefore ignored. This does not imply that a judge is able
to come to the right conclusions. There are lawyers telling him several
abstruse interpretations of special laws ...

> Jurisdictional issues can be handled as was discussed in WG-C with new
> TLD's and the potential DN that might be registered in those new name
> spaces based on the laws of the respective countries or in accordance
> with any existing international trade agreements, (Nafta, Gatt, ect.. )

Ok. I'll hold this sentence about pre-acceptance of law for the next
paragraph.

>>> I hope you have not totally closed your mind on the more logical way
>>> to bring in competition.
>>
>> No, definitly not. Unfortunely I do not see how new TLDs can overcome
>> current (inter)national law.
>
>  They don't have too.  So I guess I don't see your concern or point here
>  necessarily.  Please elaborate...

And like to insert it here. Please elaborate how to create a 'non-trademark'
TLD. I do not see an undisputable way. Even UDRP can not prevent dumb court
orders. UDRP works only if both parties do want a honest solution.

>>> The de jure solution lies with ICANN: the standard contracts between
>>> TLD registries and their registrars and the Domain Name holders need
>>> to contain clauses that protect the DN holders against monopoly
>>> abuse.
>>
>> *grin* Same contracts as with NSI? Reducing the WIPO influence by
>> ignoring laws? I worder why such a contract should possible with a new
>> registry but not with NSI, but I do not know the current contracts in
>> detail.
>
>  Well read them...

http://www.networksolutions.com/nsf/agreement/agreement.html  -> 404
http://www.ntia.doc.gov/ntiahome/domainname/proposals/docnsi100698.htm
  expires on 2000-09-30.
  requires a shared registration system => no need for new TLDs.
  limits the NSI fee for other registries to one US$ per domain.
  requires WIPO influence on domain name search tools
http://www.icann.org/policy_statement.html
  requires comittment to all national laws for registries and SLD holders.
  (fallback to LA law)
http://www.icann.org/QANDA.htm
  9US$ NSI fee for the testbed period.

Hmm. I did not found the current NSI contract but several paragraphs
supporting my view, that contracts will not break (inter)national or
regional law.

>> > In other words: Industry regulation.
>>
>> equals to lobby regulation. The more you can pay the more rights you will
>> collect. :-(
>
> Unfortunately this is largely true, although it should not be.  But it
> can be changed or ignored...

I can ignore everybody as long as I decide alone. I wonder if anybody is
able to overcome the lobby pressure in real decisions. If somebody stands up
without real good reasons, (s)he is likely be ignored in this and any future
meeting.