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 06:29:12PM -0700, Jeff Williams wrote:
> > Brad and all,
> >   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.
>
> True but misleading.   Yes, you have to use a domain name in
> a non-generic way in commerce in order to make it a trademark.

  Yes this is known as a common mark.

>
>
> But the reality is that domain names have become as important, or more
> important to people than trademarks when it comes to naming their
> companies and products.

  In some circles, yes.  Not in all.

>
>
> >
> > >
> > >
> > > 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.
>
> Useful, but only useful for the person who gets there first, and thus
> the cause of the disputes.   Note that I am not saying names can't be
> descriptive, just that they can't be purely descriptive.

  Well either it is descriptive or it isn't.  As to the "Purity" is a matter of
subjective conjecture.

>
>
> "drugstore.com" has become purely descriptive, it means "Drugstore Company"
> and so it was worth millions to be the one and only drugstore company.

  Not necessarily.  I could mean, and to me it does mean, commercial
drugstore information may be contained within.  I does not necessarily
give me that idea that this domain name is related to a "Single" company
at all.  Does webmd.com indicate that it is web medical company?  No
I don't think it does in some peoples minds.  It may in others.  Again
a matter of very questionable and debatable subjective conjecture.

>
>
> On the other hand, if the names are party descriptive, and partly branded,
> there is no source of conflict.

  PArtly branded?  How does one "Partly Brand" a thing or entity?

>   If there are competing, branded TLDs,
> then I can have "drugstore.yahoo" and you can have "drugstore.centraal" and
> others can have names like it in any number of branded TLDs, as long as
> we meet whatever rules the branded TLD sets for allocating us a bit of
> their space.

 .COM is branded.  But it is not branded as meaning "Company"...  But
rather as Commercial.

>
>
> There can be no conflict over these, or whatever conflict there is exists
> within the branded TLD's rules, and customers can shop among competing
> branded TLDs for the best methods of handling internal conflict.
>
> The name "drugstore.yahoo" has no inherent value.  It only has the value
> that Yahoo as a company brings to the brand.    This is very different
> than drugstore.com, which because it generically means "drugstore company"
> got assigned million dollar value.

  Our members wouldn't agree with this view, and neither do I on this
specifically with respect to TLD's.  As I stated above with "Drugstore.com",
"Drugstore.yahoo" is a different entity or reference all together.  I would have
to pull the site up and view the content to know what it was all about.

>
>
> >
> >   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...
>
> Not quickly, certainly.  As I address, the question of what to do with
> .com is the hard one.  I have a few possible solutions.  One good one is
> to make the legacy generic TLDs pay well for their special position.

 Pay whom?  How is the price set?  Whom determines the price?
ect, ect....

>
> Make them pay enough, in fact, that all other domains are free, subsidized
> by .com.    I think over time that would diminish, and eventually get rid
> of the .com domain.  Of course some might argue it would give it more cachet.
>
> It is possible, though difficult to phase out .com over a long period, like
> a 5 year one.  You announce it's going away in 5 years.  You issue no new
> domains within it.   You require each .com domain to declare its new name,
> and you start forwarding all traffic to the new names.   After a couple of
> years of forwarding, you shut down .com pointing all .com URLs and email
> addresses and other services that can handle it to an explanation of how
> to find the new name, or even an automated form to find them.

  Yes if you wanted to phase out .COM.  I see no good reason to do that
presently.

>
>
> The phone system has managed to switch area codes in far less time, without
> nearly as much useful ability at redirection and help.  So yes, it can be
> fixed.   I am not sure it needs to.

  Well I never changed my area code.  I had the "Choice".  I kinda like that.
I am sure that Domain Name holders would prefer having that same "Choice".
If that choice is denied to them they will make a different choice that what
is being offered or pressured upon them.  The market place will provide
for that other choice.  Hence the Inclusive/Competitive Roots and registries
such as New.Net, ORSC, Superoot, AURSC, Atlantic Root, and a number of
others.

> >
> >   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.
>
> The problem is multiple roots don't work.

  Oh?  New Net works just fine for me and 16m other users.  ORSC works
just fine for me, and unknown growing number of others, as does ULTRANET,
and a host of others.

>  We want reliability from our
> names.  We want to hand out email addresses on business cards and have
> them work.   If new.net sells one company "card.shop" and another
> competing root sells another company "card.shop" and which one you get
> depends on which root you use, the result is bad for everybody.
>
> There has to be only one "card.shop" and that means that party has a
> monopoly on the generic name "card shop", derived from the monopoly the
> granter had on names ending in ".shop"

  Agreed.  There cannot be or should not be colliding TLD's such as your
example here, .SHOP.  But the ICANN BoD and staff have introduced
two, .BIZ and .INFO and a threat to introduce more from Stuart Lynn.

>
>
> There can of course be multiple registrars and a single registry, but that
> just moves it up a level.     It still means only one entity can have the
> generic domain "card.shop" and that's an incorrect monopoly on a generic
> phrase.

  There can be shared registries as well, just not multiple identical TLD's.

>
>
> >   Agreed.  And by this same token, in a DNS context Domain Names should not
> > be trademarkable.
>
> This actually becomes moot.  If TLDs are brand names, all domains are indeed
> trademarkable under licence from the owner of the TLD brand, but there is
> no conflict -- that TLD owner sets the conflict rules.

  According to the ICANN BoD and staff, there are no "Owners" of TLD's.
Only registries that have an "ICANN accreditation" to manage a TLD registry.

>
>
> If you do business under a domain name, I see no reason you should not
> be able to trademark it, if it's a trademarkable term.   Of course
> "card.shop" is not trademarkable (as a card shop) nor is "drugstore.com" (as
> a drugstore company).  But oddly enough "card.shop" would be trademarkable
> in an unrelated field.

  You mean class here I believe.  And yes, Card.shop in some classifications
would be trademarkable.

>
>
> >
> > However I am sure that Verisign/NSOL and the ICANN BoD and staff
> > don't agree with this...
>
> Nor will they ever.  They can be replaced, if the will to replace them
> develops in the internet community, and by that I mean the key people at
> the dozen largest ISPs.

  As you know or should know this is already underway, and has been for some
time now.

>
>
> What matters is coming up with a system that will win that support.  It
> doesn't have to be my system of brand-name TLDs, but what is important
> is that it not simply hand over monopolies to some new king.  I don't think
> the community would be interesting in swapping one ICANN for a slightly
> better run one.  Easier to fix the existing one, hard as that may seem.

  Our members would agree that fixing the present ICANN is preferable,
but it seems that at present is not feasible.  The market place does not wait
on such situations very long in internet time.

>
> >
> > > All TLDs will have to deal with 2LDs inside them that are non-generic and
> > > conflict with other party's brands.
>
> Indeed, and the market (and courts) will resolve just how they do that.
> The TLD's customers will want protection from outside threats.  The TLD
> will want the avoid hassles.  The factors will balance.
>
> >  Some of us did!  I remember warning Jon about this many years ago....
>
> I guess nobody listened.

  Jon listened, but was not sure what to do at the time.  He much later
said to me on a phone conversation, that he wished he had...

>    It was January of 82, almost 20 years ago
> that the draft on two-level domains was debated.  A long time ago in
> internet time, so we can't be blamed too much for not seeing how it would go.

  Of course not.  But now it is time to throw out those ideas, and revamp the
DNS.  Without doing this, the internet will become fragmented for years
to come.  I don't view that as a good thing.  But it is workable and very
usable.

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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