Re: [icann-europe] Recommended Reading: Brad Templeton on ICANN and the DNS

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

Brad and all,

Brad Templeton wrote:

> On Thu, Jul 12, 2001 at 05:50:07PM -0700, Jeff Williams wrote:
> > Brad and all,
> > > New.net's home page says the exactly wrong thing: "Now you can get names
> > > that are truly descriptive of your business, site or offering."
> >
> > ????  How is this wrong in your opinion?  Just curious...
>
> That's the lesson of centuries of trademark law, trying to resolve the
> problem of how to allow people to name (commercial) things and get rights
> in those names, and avoid and resolve conflicts between people wanting the
> same names.

  Yes US TM law does this through "Classes" or TM's.  But even at that
xxx.biz or yyy.info does not a TM make.  Rather it is simply a string
of characters that is commonly known as a domain name on the
Internet and within the DNS.  A locator if you wish.  Nothing more.

>
>
> Trademark law took the simple stance -- nobody gets ownership of names
> that are descriptive.  In fact, strictly speaking, those aren't names at
> all.   And it was a wise stance and has worked for a long time.

  Yes.  But descriptive names as part of a Domain Name are very useful
and easy to relate to a service of a seller of goods and services.

>
>
> TM law forbids ownership of descriptive names because there will be conflict,
> and indeed because no one person should have such ownership by any method,
> be it getting there first, or auction or lottery.

  Hummmm?  I am not sure I agree.  As I said in my previous post, the
cat is out of the bag now. Or the genie is our of the bottle.  You can't
put the genie back in the bottle now...

>
>
> A _name_ in the trademark sense is not descriptive.  My name is "Brad"
> and not "you"   If you tried to name your kid "you" it would be
> allowed (since this is not commercial) but most would agree it's
> not really a name at all.
>
> >
> > >
> > >
> >   I believe this is intentional.  But you would need to ask the New.Net folks
> > to be sure.  However, I believe as I think New.Net does that Trademarking
>
> Of course it's intentional.   Ownership of generic terms is a highly
> valuable thing!   Companies will, and have paid highly for it when it
> comes to .com domains.   New.net wants a monopoly on domains ending in words
> like "shop" and "mp3" etc. and nobody should be surprised that they should
> want it.
>
> However, no one party should have such a monopoly.

  Well there is no monopoly here.  ORSC amongst other Root services and
registries have generic TLD's and therefore offer competition.  That is a healthy
thing...  SO I am a bit taken back by this comment.  More independent
registries and Root structures are coming, some are in existence such as
Ultranet and superoot.

>
>
> If TLDs are brand-names, as they should be, nobody gets any monopolies on
> generic terms.   Within these TLDs, the brand-owners can have any set of
> rules the market will like.

  Agreed.  And by this same token, in a DNS context Domain Names should not
be trademarkable.

>   That's what we want, innovation and
> competition and free markets.   Today we can't have that, even with
> alternate roots because NSI has a monopoloy on ".com" and .com has become
> a generic term for commercial internet domain.

  This is a good point.  And I tend to agree.  I am not sure our members would.
However I am sure that Verisign/NSOL and the ICANN BoD and staff
don't agree with this...

>
>
> Trademark disputes will always exist, in any system, and they belong in
> the courts, or in arbitration when mutually agreed to.

  Agreed.

>  No TLD system
> will stop Kodak from going after you if you try to do business under
> kodak.<anytld>.   That's because Kodak is of course a very special
> brand name.

  Your are referring to "Coined Term" or a famous Mark.

>    However, if Yahoo owns a TLD called .yahoo, they can
> sell any generic term they want in it without conflit with anybody, because
> it's automatically non-generic when you stick .yahoo on the end of it.
> (unless referring to the characters from gulliver's travels)
>
> All TLDs will have to deal with 2LDs inside them that are non-generic and
> conflict with other party's brands.
>
> However, as you note, if there are lots of TLDs (and there would be as
> I have proposed) there would be far less conflict over 2LDs, and that's
> good.
>
> >   Yes I am well trained in TM law.  However, the Lanham act (US)
> > never envisioned the internet not to mention DNS and Domain Names...
>
> Indeed.  My point is simply that there is a well-tested system of rules
> for how to deal with names and conflicts.   When we designed DNS, we
> were stupid, and ignored all that.  Well, we weren't that stupid, because
> nobody could see what was going to happen, and how big domain names would
> become.

 Some of us did!  I remember warning Jon about this many years ago....

>  We were mostly just worried about how to go beyond one level and
> provide some structure to things.   (In fact, it's my sad recollection
> that I was the one who suggested to Jon that we divide it up into
> commercial, military, geographical, educational etc.   Perhaps the
> stupidest suggestion I ever made.)

Regards,
--
Jeffrey A. Williams
Spokesman for INEGroup - (Over 118k 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:  972-447-1800 x1894 or 214-244-4827
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208



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