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	Thu, 3 Jun 1999 11:38:34 +0300 (EET DST)
Message-ID: <004901bead9c$429a3b60$9491d680@katti40.law.helsinki.fi>
From: "Veijo Heiskanen" <Veijo.Heiskanen@helsinki.fi>
To: "VoTiV" <uslist@top.domainregistry.net>
Cc: <us-list@ntiant1.ntia.doc.gov>
Subject: Re: Enhancement of the .us domain space
Date: Thu, 3 Jun 1999 11:37:05 +0300
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Attached the piece in MS Word 97 format.
The ICANN URL should still be active. You should get there
if you navigate from http://www.icann.org by clicking on
"Berling meeting details & materials ...", then "WIPO
Final Report" (under the heading "May 26, 1999 - ICANN
general meeting") and finally on "View comments received."
By way of a comment, I should that, assuming it's in our
common interest to have an Internet where both free speech
and commerce cannot only co-exist but flourish,
reconciliation of the Internet's communicative and
commercial functions would seem eminently advisable.
It is arguable that this can be achieved by setting up a
more comprehensive, coherent and user-friendly domain name
system.  Although such an enhancement would not remove
altogether the possibility of trademark/domain name
conflicts, it would substantially reduce the likelihood of
such conflicts.
Veijo
-----Original Message-----
From: VoTiV <uslist@top.domainregistry.net>
To: Veijo Heiskanen <Veijo.Heiskanen@helsinki.fi>
Cc: us-list@ntiant1.ntia.doc.gov
<us-list@ntiant1.ntia.doc.gov>
Date: 3. kes=E4kuuta 1999 4:03
Subject: Re: Enhancement of the .us domain space
>We don't have Word Perfect on our machines and the URL
you gave is no
>longer active.
>
>John
>
>
>On Wed, 2 Jun 1999, Veijo Heiskanen wrote:
>
>
>  [NON-Text Body part not included]
>
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\qc\sl360\slmult0\nowidctlpar\adjustright \fs20 {\f2\fs24\lang2057=20
\par COMMERCIAL CONCERN vs. PUBLIC INTEREST:  RECONCILING
\par THE INTERNET DOMAIN NAME SYSTEM AND THE PROTECTION OF INTELLECTUAL =
PROPERTY RIGHTS
\par }\pard \sl360\slmult0\nowidctlpar\adjustright {\f2\fs24\lang2057=20
\par }\pard \qc\sl360\slmult0\nowidctlpar\adjustright {\f2\fs24\lang2057 =
Veijo Heiskanen}{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\lang2057 Director, Institute of International Economic Law,=20
University of Helsinki, Finland.  LL.B., 1983 (Helsinki), LL.Lic., 1985 =
(Helsinki), LL.M., 1988 (Harvard), S.J.D., 1992 (Harvard).  An earlier =
version of this paper is available at }{\field{\*\fldinst {\fs24  =
GOTOBUTTON BM_1_ }{\f2\fs24\lang2057=20
http://www.icann.org/wipo/wipo.htm}}{\fldrslt }}{\f2\fs24\ul\lang2057 =
..}}}{\f2\fs24\lang2057=20
\par }\pard \sl360\slmult0\nowidctlpar\adjustright {\f2\fs24\lang2057=20
\par }\pard \qc\sl360\slmult0\nowidctlpar\adjustright {\f2\fs24\lang2057 =
INTRODUCTION
\par }\pard \sl360\slmult0\nowidctlpar\adjustright {\f2\fs24\lang2057=20
\par The short and intense but little-noticed battle on the governance =
of the Internet domain name system}{\cs35\super \chftn {\footnote =
\pard\plain \nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\lang2057 For discussion see, e.g., Robert C. O
\rquote Brien, }{\f2\fs24\ul\lang2057 The Generic Top Level Domain Name =
Memorandum of Understanding}{\f2\fs24\lang2057 , }{\b\f2\fs24\lang2057 =
Protection of Intellectual Property in the Asia Pacific =
Region}{\f2\fs24\lang2057=20
, published proceedings of the 3}{\f2\fs24\lang2057\super =
rd}{\f2\fs24\lang2057  LAWASIA Intellectual Property Conference and =
10}{\f2\fs24\lang2057\super th}{\f2\fs24\lang2057=20
 Annual California International Law Weekend (July 1998) (State Bar of =
California).  }{\f2\fs24\ul\lang2057 See also Electronic Commerce and =
the Role of the WTO}{\f2\fs24\lang2057 , Special Studies 2, 1998, at 64. =
=20
\par \tab For a definition of the Internet domain name see, e.g., Stuart =
E. Levi, Jose Esteves & David Marglin, }{\f2\fs24\ul\lang2057 The Domain =
Name System & Trademarks}{\f2\fs24\lang2057 , 520 }{\b\f2\fs24\lang2057 =
PLI/Pat}{\f2\fs24\lang2057  9, 11 (1998):
\par=20
\par }\pard \li720\sa240\nowidctlpar\adjustright {\f2\fs24\lang2057 =
\ldblquote The Domain Name System (DNS) allows the use of user-friendly =
names to access machines connected to the Internet by providing a =
mechanism for mapping character strings (the \lquote=20
domain name\rquote ) to numerical Internet network addresses (\lquote IP =
addresses\rquote ).  It is used by most internetworking software, =
including electronic mail, remote termi
nal programs, and file transfer programs.  The DNS is a distributed =
database that may be conceptualized as an inverted tree with the roots =
at the top, and each branch extending downward from its originating =
node.  Each node corresponds to a partition of t
he overall database (i.e., a \lquote domain\rquote ) and each domain =
name is an index into the DNS database.  Each of the domains that =
branches from the root is referred to as a top level domain (\lquote =
TLD\rquote=20
).  Currently, the TLDs are .com, .net, .org, .edu, .gov, .mil, .int, =
and each of the ISO3166 country codes (such as, UK for the United =
Kingdom and JP for Japan).  Each of the domains that branches from a TLD =
is called a second level domain (\lquote SLD
\rquote ).  For example, in PLI.ORG \lquote PLI\rquote  is the SLD while =
\lquote ORG\rquote  is the TLD.\rdblquote )}}}{\f2\fs24\lang2057 \sect =
}\sectd \linex0\headery709\footery709\colsx709\sectdefaultcl {\header =
\pard\plain \s32\qr\nowidctlpar
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\fs20 {\field{\*\fldinst {\cs33 PAGE  }}{\fldrslt {\cs33\lang1024 =
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\par }\pard \s32\nowidctlpar\tqc\tx4153\tqr\tx8306\adjustright {
\par }}\pard\plain \sl360\slmult0\nowidctlpar\adjustright \fs20 =
{\f2\fs24\lang2057 seems to have come to an early end on 25 November =
1998, when the United States Department of Commerce authorized the =
newly-
established Internet Corporation for Assigned Names and Numbers =
(\ldblquote ICANN\rdblquote ), a private, not-for-profit entity, to =
gradually take over the technical administration of the =
Internet.}{\cs35\super \chftn {\footnote \pard\plain=20
\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\ul\lang2057 See}{\f2\fs24\lang2057  }{\f2\fs24\ul\lang2057 =
Memorandum of Understanding Between the U.S. Department of Commerce and =
Internet Corporation for Assigned Names and Numbers}{
\f2\fs24\lang2057  [\ldblquote DOC/ICANN Memorandum of =
Understanding\rdblquote ], }{\field{\*\fldinst {\fs24  GOTOBUTTON BM_2_ =
}{\f2\fs24\lang2057 =
http://www.ntia.doc.gov/ntiahome/domainname/icann-memorandum.html.}}{\fld=
rslt }}{\f2\fs24\lang2057=20
  The takeover is due to complete in September 2000.  ICANN\rquote s =
website is located at }{\field{\*\fldinst {\fs24  GOTOBUTTON BM_3_ =
}{\f2\fs24\lang2057 http://www.icann.org.}}{\fldrslt =
}}{\f2\fs24\lang2057 =20
\par }\pard \sa240\nowidctlpar\adjustright {\f2\fs24\lang2057 \tab =
ICANN\rquote=20
s functions are currently performed by the Internet Assigned Numbers =
Authority and certain other entities.  These functions include the IP =
address space allocation, protocol parameter assignment, do
main name system management, and root server system management.  In =
1993, the United States National Science Foundation (\ldblquote =
NSF\rdblquote ) awarded Network Solutions, Inc. (\ldblquote =
NSI\rdblquote=20
), a Virginia-based company, a five-year cooperative agreement, under =
which NSI was author
ized to serve as the exclusive provider of domain name registration =
services for the non-military TLDs.  The current contract with the =
Department of Commerce, which has taken over NSF\rquote s functions, is =
due to expire in September 2000.}}}{
\f2\fs24\lang2057   The decision implemented the privatization policy =
that the Department of Commerce had previously proposed in its January =
1998 \ldblquote Green Paper\rdblquote }{\cs35\super \chftn {\footnote =
\pard\plain \sa240\nowidctlpar\adjustright=20
\fs20 {\cs35\super \chftn }{\f2\fs24\ul\lang2057 A Proposal to Improve =
the Technical Management of Internet Names and =
Addresses}{\f2\fs24\lang2057 , Discussion Draft, 30 Jan. 1998 =
(hereinafter the \ldblquote Green Paper\rdblquote ), }{\field{\*\fldinst =
{
\fs24  GOTOBUTTON BM_4_ }{\f2\fs24\lang2057 =
http://www.ntia.doc.gov/ntiahome/domainname/dnsdrft.html.}}{\fldrslt =
}}{\f2\fs24\lang2057  }}}{\f2\fs24\lang2057  and formally announced in =
its June 1998 \ldblquote White Paper.\rdblquote }{\cs35\super \chftn=20
{\footnote \pard\plain \sa240\nowidctlpar\adjustright \fs20 {\cs35\super =
\chftn }{\f2\fs24\ul\lang2057 See}{\f2\fs24\lang2057  United States =
Department of Commerce, Statement of Policy, }{\f2\fs24\ul\lang2057 =
Management of Internet Names and Addresses}{
\f2\fs24\lang2057 , 5 June 1998, 63 }{\f2\fs24\ul\lang2057 Fed. =
Reg.}{\f2\fs24\lang2057  31741 (1998) (hereinafter the \ldblquote White =
Paper\rdblquote ), }{\field{\*\fldinst {\fs24  GOTOBUTTON BM_5_ =
}{\f2\fs24\lang2057=20
http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.html.}}{\fldrslt =
}}{\f2\fs24\lang2057   }}}{\f2\fs24\lang2057   The decision also =
effectively undermined the attempts of the self-appointed International =
Ad Hoc Committee (\ldblquote IAHC\rdblquote )}{
\cs35\super \chftn {\footnote \pard\plain \sa240\nowidctlpar\adjustright =
\fs20 {\cs35\super \chftn }{\f2\fs24\lang2057 IAHC, which defined itself =
as \ldblquote=20
a coalition of participants from the broad Internet community, working =
to satisfy the requirement for enhancements to the Internet\rquote s =
global Domain Name System (DNS),\rdblquote  was formed in September 1996 =
at the initiative of the Internet Society and at the request of the =
Internet Assigned Numbers Authority (\ldblquote IANA\rdblquote ).  =
}{\f2\fs24\ul\lang2057 See}{\f2\fs24\lang2057  }{\field{\*\fldinst =
{\fs24  GOTOBUTTON BM_6_ }{\f2\fs24\lang2057=20
http://www.iahc.org.}}{\fldrslt }}{\f2\fs24\ul\lang2057   IAHC was =
dissolved on 1 May 1997, see}{\f2\fs24\lang2057  }{\field{\*\fldinst =
{\fs24  GOTOBUTTON BM_7_ }{\f2\fs24\lang2057 =
http://www.iahc.org.}}{\fldrslt }}{\f2\fs24\lang2057   IAHC\rquote=20
s initial task was to develop recommendations for enhancements to the =
administration and management of generic Internet Top Level Domains =
(\ldblquote gTLDs\rdblquote ), i.e., the TLDs \ldblquote .com,\rdblquote =
 \ldblquote .org,\rdblquote  \ldblquote .net
\rdblquote  and \ldblquote .edu.\rdblquote   }{\f2\fs24\ul\lang2057 =
See}{\f2\fs24\lang2057  }{\f2\fs24\ul\lang2057 Memorandum of =
Understanding on the Generic Top-Level Domain Name Space of the Internet =
Domain Name System}{\f2\fs24\lang2057 , 1 May 1997, }
{\field{\*\fldinst {\fs24  GOTOBUTTON BM_8_ }{\f2\fs24\lang2057 =
http://www.gtld-mou.org/gTLD-MoU.html.}}{\fldrslt =
}}{\f2\fs24\ul\lang2057  }}}{\f2\fs24\lang2057  and its successor, the =
Policy Oversight Committee (\ldblquote POC\rdblquote=20
), to take over the governance of the Internet.  Although the =
newly-established ICANN will have a functionally and globally =
representative board of directors,}{\cs35\super \chftn {\footnote =
\pard\plain \sa240\nowidctlpar\adjustright \fs20 {\cs35\super=20
\chftn }{\f2\fs24\lang2057 The White Paper anticipated that the board =
\ldblquote should be balanced to equitably represent the interests of =
the IP number registries, domain name registries, domain name =
registrars, t
he technical community, Internet service providers (ISPs), and Internet =
users (commercial, not-for-profit, and individuals) from around the =
world.\rdblquote   White Paper, }{\f2\fs24\ul\lang2057 =
supra}{\f2\fs24\lang2057  note __, at 12.}}}{
\f2\fs24\lang2057  thus enhancing international participation in the =
management of the Internet domain name system, it is incorporated under =
the United States law and headquartered in the United States \endash=20
- features that will practically ensure that control over the technical =
management of the Internet will remain in the United States =
soil.}{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn }{
\f2\fs24\lang2057 According to the White Paper, \ldblquote=20
[b]ecause of the significant U.S.-based DNS expertise and in order to =
preserve stability, it makes sense to headquarter the new corporation in =
the United States.  Further, the mere fact that the new corporation =
would be incorpora
ted in the United States would not remove it from the jurisdiction of =
other nations.  Finally, we note that the new corporation must be =
headquartered somewhere, and similar objections would inevitably arise =
if it were incorporated in another location.
\rdblquote   }{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 ., at =
8.}}}{\f2\fs24\lang2057   The outcome reflects the United States =
Government\rquote s and research institutions\rquote=20
 pivotal role in the development of technologies and communications =
networks that eventually evolved into what became known as the =
Internet.}{\cs35\super \chftn {\footnote \pard\plain =
\nowidctlpar\adjustright \fs20 {\cs35\super \chftn }{\f2\fs24\lang2057=20
For a brief description of the history of the Internet see the White =
Paper, }{\f2\fs24\ul\lang2057 supra}{\f2\fs24\lang2057  note __, at 2-3. =
 }{\f2\fs24\ul\lang2057 See also}{\f2\fs24\lang2057  Vinston Cerf, =
}{\f2\fs24\ul\lang2057 The Internet Phenomenon
}{\f2\fs24\lang2057 , }{\field{\*\fldinst {\fs24  GOTOBUTTON BM_9_ =
}{\f2\fs24\lang2057 =
http://www.cise.nsf.gov/general/compsci/net/cerf.html.}}{\fldrslt =
}}{\f2\fs24\lang2057=20
\par }}}{\f2\fs24\lang2057 \tab The U.S. leadership in the area is not =
particularly controversial.  As of March 1999, more than 25 governments =
and international organizations have already endorsed ICANN as the body =
responsible for Internet governance.  }{
\f2\fs24\ul\lang2057 See}{\f2\fs24\lang2057  }{\f2\fs24\ul\lang2057 =
Governments Endorse Private Sector Internet}{\f2\fs24\lang2057 , ICANN =
Press Release, 2 March 1999, }{\field{\*\fldinst =
{\f2\fs24\lang2057\super  GOTOBUTTON BM_:_ }{\f2\fs24\lang2057=20
http://www.icann.org/icann-pr02mar99.html.}}{\fldrslt =
}}{\f2\fs24\ul\lang2057  See also}{\f2\fs24\lang2057  =
}{\f2\fs24\ul\lang2057 Internet Governance:  Management of Internet =
Names and Addresses}{\f2\fs24\lang2057=20
, Analysis and Assessment from the European Commission of the United =
States Department of Commerce White Paper, 29 July 1998, COM(1998) 476, =
}{\field{\*\fldinst {\f2\fs24\lang2057\super  GOTOBUTTON BM_;_ =
}{\f2\fs24\lang2057=20
http://www.ispo.cec.be/eif/dns/com98476.html.}}{\fldrslt =
}}{\f2\fs24\lang2057  =20
\par=20
\par }{\fs24\lang2057 \sect }\sectd =
\marglsxn1417\sbknone\linex0\headery709\footery709\colsx709\sectdefaultcl=
 \pard\plain \sl360\slmult0\nowidctlpar\adjustright \fs20 =
{\f2\fs24\lang2057 But even if the efforts of IAHC and POC,}{\cs35\super =
\chftn {\footnote=20
\pard\plain \sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\lang2057 POC was established pursuant to Section 6(g)(viii) =
of gTLD-MoU, }{\f2\fs24\ul\lang2057 supra}{\f2\fs24\lang2057  note ___ . =
 POC\rquote s function was to be=20
\ldblquote to conduct oversight of CORE and CORE-gTLDs and to set =
policies for CORE and its Registrars consistent with th[e] =
[gTLD-MoU].\rdblquote   }{\f2\fs24\ul\lang2057 Ibid}{\f2\fs24\lang2057 =
..}}}{\f2\fs24\lang2057=20
 which consisted of representatives of the Internet Society (\ldblquote =
ISOC\rdblquote ), the Internet Assigned Numbers Authority (\ldblquote =
IANA\rdblquote ), the International Telecommunications Union (\ldblquote =
ITU\rdblquote=20
), the World Intellectual Property Organization (\ldblquote =
WIPO\rdblquote ), and certain other stakeholders of the Internet =
community, to take over Internet governance ultimately failed, many of =
the proposals included in IAHC\rquote s \ldblquote=20
Memorandum of Understanding on the Generic Top-Level Domain Name Space =
of the Internet Domain Name System\rdblquote  (\ldblquote =
gTLD-MoU\rdblquote )}{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn }{
\f2\fs24\ul\lang2057 Memorandum of Understanding on the Generic =
Top-Level Domain Name Space of the Internet Domain Name =
System}{\f2\fs24\lang2057 , 1 May 1997, }{\f2\fs24\ul\lang2057 =
supra}{\f2\fs24\lang2057  note __  (hereinafter \ldblquote gTLD-MoU
\rdblquote ).}{\field{\*\fldinst {\fs24  GOTOBUTTON BM_<_ }}{\fldrslt =
}}}}{\f2\fs24\lang2057  have survived.  Chief among these is the idea of =
establishi
ng an alternative international dispute settlement system, to be =
administered by WIPO and its Arbitration and Mediation Center, to =
resolve intellectual property disputes, particularly those involving =
trademarks, associated with Internet domain names.}{
\cs35\super \chftn {\footnote \pard\plain \sa240\nowidctlpar\adjustright =
\fs20 {\cs35\super \chftn }{\f2\fs24\lang2057 The gTLD-MoU foresaw the =
establishment of \ldblquote Administrative Domain Name Challenge =
Panels\rdblquote  (\ldblquote ACPs\rdblquote=20
) \ldblquote to entertain challenges by third parties to the allocation =
of SLDs.\rdblquote   gTLD-MoU, at Section 1(j) & Section 8.  The =
function of the ACPs was administer the policy stated in Section 2(f), =
}{\f2\fs24\ul\lang2057 infra}{
\f2\fs24\lang2057  note __.}}}{\f2\fs24\lang2057  =20
\par=20
\par WIPO\rquote s role in the resolution of disputes relating to the =
international protection of intellectual property rights was also =
recognized in the White Paper, wherein the Department of Commerce =
requested WIPO \ldblquote to conve
ne an international process including individuals from the private =
sector and government to develop a set of recommendations for =
trademark/domain name dispute resolutions and other issues to be =
presented to the Interim Board [of ICANN] for its considerati
on as soon as possible.\rdblquote }{\cs35\super \chftn {\footnote =
\pard\plain \sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\lang2057 White Paper, }{\f2\fs24\ul\lang2057 =
supra}{\f2\fs24\lang2057  note ___, at 20.}}}{\f2\fs24\lang2057=20
  In response to this request, WIPO on 9 July 1998 launched an =
international consultative process to develop such =
recommendations.}{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\ul\lang2057=20
See}{\f2\fs24\lang2057  }{\f2\fs24\ul\lang2057 Request for Comments on =
Terms of Reference Procedures and Timetable for the WIPO Internet Domain =
Name Process}{\f2\fs24\lang2057  (\ldblquote WIPO RFC-1"), =
}{\field{\*\fldinst {\fs24  GOTOBUTTON BM_=3D_ }{
\f2\fs24\lang2057 http://wipo2.wipo.int/process/eng/rfc.html }}{\fldrslt =
}}{\f2\fs24\lang2057  (hereinafter \ldblquote WIPO =
RFC-1").}}}{\f2\fs24\lang2057  =20
\par=20
\par }{\fs24\lang2057 \sect }\sectd =
\marglsxn1359\sbknone\linex0\headery709\footery709\colsx709\sectdefaultcl=
 \pard\plain \sl360\slmult0\nowidctlpar\adjustright \fs20 =
{\f2\fs24\lang2057 The present paper analyzes WIPO\rquote=20
s recommendations, particularly those relating to dispute resolution, as =
proposed in the \ldblquote Interim Report of the WIPO Internet Domain =
Name Process\rdblquote }{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {
\cs35\super \chftn }{\f2\fs24\ul\lang2057 Interim Report of the WIPO =
Internet Domain Name Process}{\f2\fs24\lang2057 , Dec. 23, 1998, =
}{\field{\*\fldinst {\fs24  GOTOBUTTON BM_>_ }{\f2\fs24\lang2057 =
http://www.wipo2.wipo.int/process/eng/rfc_3.html }
}{\fldrslt }}{\f2\fs24\lang2057  (hereinafter \ldblquote WIPO =
RFC-3").}}}{\f2\fs24\lang2057  and subsequently formalized in the Final =
Report issued on 30 April 1999.}{\cs35\super \chftn {\footnote =
\pard\plain \sa240\nowidctlpar\adjustright \fs20 {
\cs35\super \chftn }{\f2\fs24\ul\lang2057 Final Report of the WIPO =
Internet Domain Name Process}{\f2\fs24\lang2057 , Apr. 30, 1999, =
}{\field{\*\fldinst {\fs24  GOTOBUTTON BM_?_ }{\f2\fs24\lang2057 =
http://www.wipo2.wipo.int/process/eng/final_report.html.}
}{\fldrslt }}{\f2\fs24\lang2057   (hereinafter \ldblquote WIPO Final =
Report\rdblquote  or \ldblquote Final Report\rdblquote =
).}}}{\f2\fs24\lang2057   The paper also summarizes some of the main =
criticisms leveled against WIPO\rquote=20
s recommendations, assesses the validity of these criticisms and finally =
suggests certain technical modifications to the existing Internet domain =
name system in an attempt to reco
ncile the intellectual property concerns reflected in the Final Report =
and the public interest issues identified by the critics.=20
\par=20
\par }\pard \qc\sl360\slmult0\nowidctlpar\adjustright {\f2\fs24\lang2057 =
I.  THE BACKGROUND OF DOMAIN NAME/TRADEMARK DISPUTES
\par }\pard \sl360\slmult0\nowidctlpar\adjustright {\f2\fs24\lang2057=20
\par A conflict may arise between an Internet domain name and an =
existing intellectual property right, particularly a trademark, because =
many companies prefer, if at all technically feasible,}{\cs35\super =
\chftn {\footnote \pard\plain=20
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\lang2057 In addition to names and words, a logo, slogan, =
package design, etc., or a combination thereof, can also serve as a =
trademark.  }{\f2\fs24\ul\lang2057 See, e.g.}{
\f2\fs24\lang2057 , William M. Borchard, }{\f2\fs24\ul\lang2057 =
Trademark Basics:  A Guide for Business}{\f2\fs24\lang2057 , at 1-2, =
}{\field{\*\fldinst {\fs24  GOTOBUTTON BM_@_ }{\f2\fs24\lang2057 =
http://inta.org/tmbasics.html.}{\f2\fs24\ul\lang2057 ;}
}{\fldrslt }}{\f2\fs24\ul\lang2057  D. Jennings Meincke, Trademarks, =
Service Marks and Web Pages}{\f2\fs24\lang2057 , at 1, =
}{\field{\*\fldinst {\fs24  GOTOBUTTON BM_A_ }{\f2\fs24\lang2057 =
http://www.webprofession.com/departs/98-05/dep200.html.}
}{\fldrslt }}{\f2\fs24\lang2057  ; Thomas G. Field, Jr., =
}{\f2\fs24\ul\lang2057 Trademarks and Business =
Goodwill}{\f2\fs24\lang2057 , at 1, }{\field{\*\fldinst {\fs24  =
GOTOBUTTON BM_B_ }{\f2\fs24\lang2057 =
http://www.fplc.edu/tfield/Trademk.html.}
}{\fldrslt }}{\f2\fs24\lang2057   }}}{\f2\fs24\lang2057  to use their =
trademarks as their domain names.}{\cs35\super \chftn {\footnote =
\pard\plain \nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\lang2057 WIPO Final Report describes the=20
\ldblquote transmutation process\rdblquote  of domain names as follows:
\par=20
\par }\pard \li720\nowidctlpar\adjustright {\f2\fs24\lang2057 \ldblquote =
Domain names were intended to perform a technical function in a manner =
that was convenient to the human users of the Internet.  They were =
intended to provide addresses for computers that were easy to remember =
and to identify without the nee
d to resort to the underlying IP numeric address.  Precisely because =
they are easy to remember and to identify, however, domain names have =
come to acquire a supplementary existence a business or personal =
identifiers.  As commercial activities have increas
e
d on the Internet, domain names have become part of the standard =
communication apparatus used by businesses to identify themselves, their =
products and their activities.  Advertisements appearing in the media =
routinely include a domain name address, along=20
w
ith other means of identification and communication, such as the =
corporate name, trademark and telephone and facsimile numbers.  But, =
whereas the telephone and facsimile numbers consist of an anonymous =
string of numbers without any other significance, the
 domain name, because of its purpose of being easy to remember and to =
identify, often carries an additional significance which is connected =
with the name or mark of a business or its produce or =
services.\rdblquote=20
\par }\pard \nowidctlpar\adjustright {\f2\fs24\lang2057=20
\par }}}{\f2\fs24\lang2057 WIPO Final Report, para. 10.  For discussion =
of the relationship between domain names and trademarks see, e.g., =
Michael V. LiRocchi, Steven Kepler & Robert C. O\rquote Brien, =
}{\f2\fs24\ul\lang2057=20
Trademarks and Internet Domain Names in the Digital =
Millennium}{\f2\fs24\lang2057  (forthcoming); Levi, Esteves & Marglin, =
}{\f2\fs24\ul\lang2057 supra}{\f2\fs24\lang2057  note __; Rosanne T. =
Mitchell, }{\f2\fs24\ul\lang2057=20
Resolving Domain Name-Trademark Disputes:  A New System of Alternative =
Dispute Resolution is Needed in Cyberspace}{\f2\fs24\lang2057 , 14 =
}{\b\f2\fs24\lang2057 Ohio St. J. on Disp. Resol.}{\f2\fs24\lang2057  =
157 (1998); David B. Nash, }{
\f2\fs24\ul\lang2057 Orderly Expansion of the International Top-Level =
Domains:  Concurrent Trademark Users Need a Way Out of the Internet =
Trademark Quagmire}{\f2\fs24\lang2057 , 15 }{\b\f2\fs24\lang2057 J. =
Marshall J. Computer & Info. L.}{
\f2\fs24\lang2057  521 (1997); Garry W. Hamilton, }{\f2\fs24\ul\lang2057 =
Trademarks on the Internet:  Confusion, Collusion or =
Dilution?}{\f2\fs24\lang2057 , 4 }{\b\f2\fs24\lang2057 Tex. Intell. =
Prop. L.J.}{\f2\fs24\lang2057=20
 1 (1995); James West Marcovitz, }{\field{\*\fldinst =
{\f2\fs24\lang2057\super  GOTOBUTTON BM_C_ }{\f2\fs24\lang2057 =
Ronald@McDonalds.Com}}{\fldrslt }}{\f2\fs24\ul\lang2057  \endash - =
\ldblquote Owning a Bitchin\rdblquote=20
 Corporate Trademark as an Internet Address \endash  =
Infringement}{\f2\fs24\lang2057 ?, 17 }{\b\f2\fs24\lang2057 Cardozo L. =
Rev.}{\f2\fs24\lang2057  85 (1995).   Consequently, a company owning the =
trademark \ldblquote showbiz\rdblquote }{\cs35\super=20
\chftn {\footnote \pard\plain \sa240\nowidctlpar\adjustright \fs20 =
{\cs35\super \chftn }{\f2\fs24\lang2057 As I am unaware of the existence =
of any such trademark, the example is hypothetical.}}}{\f2\fs24\lang2057 =
 is likely to end up choosing the trademark also to serve as part of the =
business\rquote s domain name, particularly if the mark is famous or =
well-known.}{\cs35\super \chftn {\footnote \pard\plain =
\nowidctlpar\adjustright \fs20 {\cs35\super \chftn }{
\f2\fs24\lang2057 The term \ldblquote mark\rdblquote  is used herein to =
refer to both \ldblquote trademarks\rdblquote  (i.e., marks that are =
used in respect of goods) and \ldblquote service marks\rdblquote=20
 (i.e., marks that are used to identify the source of the source of =
services provided).=20
\par \tab A mark is famous or well-known if it is known in a country =
other than its country of registration without such registration, the =
two terms \ldblquote famous\rdblquote  and \ldblquote =
well-known\rdblquote=20
 being often used interchangeably.  The relevant provision is art. 6bis, =
section (1) of the Paris Convention for the Protection of Industrial =
Property, Mar. 20, 1883 (the \ldblquote Paris Convention\rdblquote ):
\par=20
\par }\pard \li720\nowidctlpar\adjustright {\f2\fs24\lang2057 \ldblquote =
The countries of the Union undertake, ex officio, if their legislation =
so permits, or at the request of an interested party, to refuse or to =
cancel the registration, and to prohibit the use, of a trademark which =
constitutes a reproduction, an imitation
, or a translation, liable to create confusion, of a mark considered by =
the competent authority of the country of  registration or use to be =
well known in that country as being already the mark of a person =
entitled to the benefits of this Convention and u
sed for identical or similar goods.  These provisions shall also apply =
when the essential part of the mark constitutes a reproduction of any =
such well-known mark or an imitation liable to create confusion =
therewith.\rdblquote=20
\par }\pard \nowidctlpar\adjustright {\f2\fs24\lang2057=20
\par The Agreement on Trade-Related Aspects of Intellectual Property =
Rights, Including Trade in Counterfeit Goods (\ldblquote TRIPS\rdblquote =
), Dec. 15, 1993, }{\f2\fs24\ul\lang2057 reprinted in}{\f2\fs24\lang2057 =
 33 I.L.M. 81, adopted in the multilateral trade negotiations (the =
\ldblquote Uruguay Round\rdblquote ) conducted under the auspices of the =
World Trade Organization\rquote s (\ldblquote WTO\rdblquote=20
), extended the protection of famous or well-known trademarks to service =
marks, as well as to goods and services \ldblquote which are not similar =
to those in respect of which a trademark is registered.\rdblquote   Art. =
16.3 of TRIPS.
\par }}}{\f2\fs24\lang2057 \tab For discussion of the concept and =
international protection of famous and well-known marks see WIPO Final =
Report, paras. 245-62.=20
\par The practice of using famous or well-known marks as domain names =
makes eminent sense from a business point of view, for two reasons.  =
First, reliance on an existi
ng, recognized trademark as a domain name forecloses the need to =
introduce a separate marketing campaign to gain consumer recognition of =
the domain name, thus facilitating the promotion, advertisement, =
marketing, sale and, in certain instances, distributi
on of the company\rquote=20
s products and services via the Internet.  The use of famous or =
well-known trademarks as domain names also serves the consumers by =
providing an easy-to-remember code for them to navigate the Internet in =
order to locate the products or serv
ices that they are interested in.  In other words, serving as it does =
both the businesses\rquote  and the consumers\rquote=20
 interests, the systematic use of famous or well-known trademarks as =
domain names contributes to the development and orderly functioning of =
the Internet as an emerging global marketplace.
\par=20
\par Problems may arise, however, when an existing trademark or, rather, =
a character string that is identical to an existing trademark, is =
registered as a domain name by an individual or entity other than the =
owner of the trademark.}{\cs35\super \chftn=20
{\footnote \pard\plain \nowidctlpar\adjustright \fs20 {\cs35\super =
\chftn }{\f2\fs24\lang2057=20
This is possible because, under the current system, domain names are =
registered on a first-come, first-served basis and registrars are not =
required to verify possible conflicts between domain names and =
trademarks.   WIPO Final=20
Report does not propose any formal modifications to the existing system, =
but recommends that \ldblquote=20
domain name application contain appropriate language encouraging the =
applicant to undertake voluntarily [searches of potentially conflicting =
trademarks].\rdblquote   WIPO Final Report, para. 105.  }{\fs24\lang2057 =
\par }}}{\fs24\lang2057 \tab }{\f2\fs24\lang2057 NSI is currently the =
sole registrar and registry administrator for domains \ldblquote =
..com,\rdblquote  \ldblquote .net\rdblquote  and \ldblquote =
org.\rdblquote   }{\f2\fs24\ul\lang2057 See supra}{
\f2\fs24\lang2057  note __ .  NSI\rquote s current domain name dispute =
policy can be found at }{\field{\*\fldinst {\f2\fs24\lang2057\super  =
GOTOBUTTON BM_D_ }{\f2\fs24\lang2057 =
http://www.networksolutions.com/legal/dispute-policy.html.}}{\fldrslt =
}}{
\f2\fs24\lang2057    If the registrant \endash - the domain name holder =
-- will use the newly-created website for commercial purposes, the fact =
that the domain name is identical to another company\rquote=20
s trademark may create confusion among consumers as to
 the source of the products or services offered on the website, =
particularly if the trademark is famous or well-known.  Moreover, the =
fact that the rightful owner of the trademark will not be able to =
register its trademark as a domain name to promote, adv
ertise, market and sell its products and services on the Internet is =
likely to adversely affect the accessibility of the company\rquote s =
website and, consequently, damage the company\rquote s electronic =
operations.
\par=20
\par A conflict between a domain name and a famous or well-known =
trademark may result from an abusive registration, or intentional =
\ldblquote cybersquatting\rdblquote  or \ldblquote =
cyberpiracy.\rdblquote=20
  In such instances the registrant may have obtained the domain name =
solely with a view to extorting a ransom from the owner of the =
corresponding trademark.}{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super=20
\chftn }{\f2\fs24\ul\lang2057 See}{\f2\fs24\lang2057  WIPO Final Report, =
paras. 23-24, 130-31, 170; Levi, Esteves & Marglin, =
}{\f2\fs24\ul\lang2057 supra}{\f2\fs24\lang2057  note __, at 23; =
O\rquote Brien, }{\f2\fs24\ul\lang2057 supra}{\f2\fs24\lang2057=20
 note __, at 3.}}}{\f2\fs24\lang2057   The practice of cybersquatting is =
not uncommon, although its scope is not known with =
precision.}{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn }{
\f2\fs24\ul\lang2057 See}{\f2\fs24\lang2057  WIPO Final Report, paras. =
313-20.  For discussion of case law see, e.g., LiRocchi, Kepler & =
O\rquote Brien, }{\f2\fs24\ul\lang2057 supra}{\f2\fs24\lang2057  note =
__, at ___ .}}}{\f2\fs24\lang2057=20
  Given the global nature of the Internet, a conflict between a domain =
name and an existing trademark may also result from a simple =
coincidence, reflecting no bad faith on the registrant\rquote=20
s part.  Most trademarks not being well-known or famous beyond the =
jurisdiction within which they are registered and used, it cannot be =
legitimately assumed that an individual registrant residing on the other =
side of t
he globe be aware of the possibility of a conflict between the domain =
name being registered and an existing trademark. =20
\par=20
\par To make things worse, the dual nature of the Internet as an =
emerging international marketplace and as a global medium of =
communication
 greatly complicates the resolution of disputes between a domain name =
holder and a trademark owner residing in two different countries.  On =
the one hand, while the Internet establishes a borderless, global medium =
for commerce, the laws protecting trademar
ks are generally territorial in nature.}{\cs35\super \chftn {\footnote =
\pard\plain \sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\ul\lang2057 See}{\f2\fs24\lang2057=20
 WIPO Final Report, para.  22.  For further discussion see, e.g., Beth =
Fulkerson, }{\f2\fs24\ul\lang2057 Theft by Territorialism:  A Case for =
Revising TRIPS to Protect Trademarks from National Market =
Foreclosure}{\f2\fs24\lang2057 , 17 }{
\b\f2\fs24\lang2057 Mich. J. Int\rquote l L.}{\f2\fs24\lang2057  801 =
(1996).}}}{\f2\fs24\lang2057=20
  Consequently, the reach of the emerging marketplace and the scope of =
the protected right are not co-extensive.  Moreover, domain names, =
particularly those registered by individuals, are not used exclusively =
for commercial purposes but also for=20
purposes of exchange of information and communication, including =
political and other expressive activity.  As a result, the apparent or =
nominal conflict between a domain name and an existing trademark may =
lack substance, particularly in instances where th
e domain name holder resides in a jurisdiction other than the trademark =
owner, and where the trademark is not registered or otherwise legally =
protected (e.g., as famous or well-known) in such jurisdiction.  =20
\par=20
\par The \ldblquote trademark dilemma\rdblquote  between commercial inte
llectual property concerns and public interest issues, such as the right =
of an individual to a domain name registered in good faith and =
consistently with the local law, was summarized in the White Paper as =
follows:
\par=20
\par }\pard \li639\sl360\slmult0\nowidctlpar\adjustright =
{\f2\fs24\lang2057 \ldblquote When a trademark is used as a domain name =
without the trademark owner\rquote=20
s consent, consumers may be misled about the source of the product or =
service offered on the Internet, and trademark owners may not be able to =
protect their rights without very expensive litigation.  For cyberspace =
to functio
n as an effective commercial market, businesses must have confidence =
that their trademarks can be protected.  On the other hand, management =
of the Internet must respond to the needs of the Internet community as a =
whole, and not trademark owners exclusivel
y.\rdblquote }{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\lang2057 White Paper, }{\f2\fs24\ul\lang2057 =
supra}{\f2\fs24\lang2057  note __, at 10.}}}{\f2\fs24\lang2057=20
\par }\pard \sl360\slmult0\nowidctlpar\adjustright {\f2\fs24\lang2057=20
\par The White Paper also noted the many other difficulties that are =
likely to arise in connection with the resolution of disputes associated =
with domain name registrations.  Most of these difficulties result from =
the bo
rderless nature of the Internet, which complicates the application of =
national, territory-based laws to disputes arising out of Internet-based =
activity.  The reach of a state\rquote=20
s regulatory jurisdiction in intellectual property matters, as well as =
the establ
ishment of personal and subject matter jurisdiction over the domain name =
holder and the domain name/trademark issue, respectively, as well as the =
applicable law, are likely to become controversial issues in a =
cross-border litigation context.}{\cs35\super=20
\chftn {\footnote \pard\plain \sa240\nowidctlpar\adjustright \fs20 =
{\cs35\super \chftn }{\f2\fs24\ul\lang2057 See}{\f2\fs24\lang2057  =
}{\f2\fs24\ul\lang2057 Comments=20
Submitted by the International Bureau of the World Intellectual Property =
Organization (WIPO) in response to the Proposed Rule for the Improvement =
of Technical Management of Internet Names and Address [the \ldblquote =
Green Paper\rdblquote ]}{
\f2\fs24\lang2057 , }{\field{\*\fldinst {\fs24  GOTOBUTTON BM_E_ =
}{\f2\fs24\lang2057 =
http://www.arbiter.wipo.int/forum/wipo-gr.html}{\fs24\ul\lang2057 =
,}}{\fldrslt }}{\fs24\ul\lang2057  }{\f2\fs24\ul\lang2057  at 2 =
(hereinafter \ldblquote WIPO Comments
\rdblquote ) (noting that \ldblquote [t]he difficulties [referred to in =
the Green Paper and subsequently restated in the White Paper] derive =
from the global character of the Internet and the consequence that th
e legal effects of Internet activity are generally not restricted to any =
particular national jurisdiction.\rdblquote ) }}}{\f2\fs24\lang2057 =20
\par=20
\par Recognizing the complexity of the legal issues associated with the =
domain name/trademark dilemma, the White Paper refrained from making any =
substantive recommendations in the matter.  While acknowledging that =
\ldblquote=20
[o]btaining agreement by the parties that jurisdiction over the domain =
name will be exercised by an alternative dispute resolution body is =
likely to be at least somewhat=20
less controversial than agreement that the parties will subject =
themselves to the personal jurisdiction of a particular national =
court,\rdblquote }{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn }{
\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 ., at =
11-12.}}}{\f2\fs24\lang2057  the White Paper nevertheless adopted a =
policy to the effect that, where legitimate competing rights were =
concerned, such disputes are rightly settled in an appropriate court.}{
\cs35\super \chftn {\footnote \pard\plain \sa240\nowidctlpar\adjustright =
\fs20 {\cs35\super \chftn }{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 =
.., at 12.}}}{\f2\fs24\lang2057   Accordingly, the White Paper =
recommended that \ldblquote=20
domain name holders agree to submit infringing domain names to the =
jurisdiction of a court where the \lquote A\rquote  root server=20
is maintained, where the registry is domiciled, where the registry =
database is maintained, or where the registrar is domiciled.\rdblquote =
}{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn }{
\f2\fs24\ul\lang2057 Ibid}{\f2\fs24\lang2057 .}}}{\f2\fs24\lang2057   =
According to the White Paper, \ldblquote allowing trademark infringement =
suits to be brought wherever registrars and registries are located will =
help ensure that all trademark holders=20
\endash - both U.S. and non-U.S. \endash - have the opportunity to bring =
suits in a convenient jurisdiction and enforce the judgments of those =
courts.\rdblquote }{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super=20
\chftn }{\f2\fs24\ul\lang2057 Ibid}{\f2\fs24\lang2057 =
..}}}{\f2\fs24\lang2057=20
\par=20
\par Concerning alternative dispute resolution, the White Paper stated =
that the United States Government would
\par=20
\par }\pard \li639\sl360\slmult0\nowidctlpar\adjustright =
{\f2\fs24\lang2057 \ldblquote=20
seek international support to call upon the [WIPO] to initiate a =
balanced and transparent process, which includes the participation of =
trademark holders and members of the Internet community who are no
t trademark holders, to (1) develop recommendations for a uniform =
approach to resolving trademark/domain name disputes involving =
cyberpiracy (as opposed to conflicts between trademark holders with =
legitimate competing rights), (2) recommend a process for=20
p
rotecting famous trademarks in the generic top level domains, and (3) =
evaluate the effects, based on studies conducted by independent =
organizations, such as the National Research Council of the National =
Academy of Sciences, of adding new gTLDs and related
=20
dispute resolution procedures on trademark and intellectual property =
holders.  The findings and recommendations could be submitted to the =
board of the new corporation for its consideration in conjunction with =
its development of registry and registrar poli
cy and the creation and introduction of new gTLDs.\rdblquote =
}{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\lang2057 White Paper, }{\f2\fs24\ul\lang2057 =
supra}{\f2\fs24\lang2057=20
 note __, at 11.}}}{\f2\fs24\lang2057=20
\par }\pard \sl360\slmult0\nowidctlpar\adjustright {\f2\fs24\lang2057=20
\par }{\fs24\lang2057 \sect }\sectd =
\marglsxn1303\sbknone\linex0\headery709\footery709\colsx709\sectdefaultcl=
 \pard\plain \sl360\slmult0\nowidctlpar\adjustright \fs20 =
{\f2\fs24\lang2057 Accordingly, the dispute resoluti
on system envisaged in the White Paper consists of two legs:  a court =
system to deal with disputes relating to legitimate, competing =
intellectual property rights; and an alternative, international dispute =
resolution system in cases involving cyberpiracy o
r cybersquatting.}{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\lang2057 White Paper, at 19.  Registries and Registrars would =
be required to abide by decisions of the ADR system.  }{
\f2\fs24\ul\lang2057 Ibid}{\f2\fs24\lang2057 .}}}{\f2\fs24\lang2057=20
\par \tab \tab \tab=20
\par }\pard \qc\sl360\slmult0\nowidctlpar\adjustright {\f2\fs24\lang2057 =
II.  THE WIPO INTERNET DOMAIN NAME PROCESS
\par }\pard \sl360\slmult0\nowidctlpar\adjustright {\f2\fs24\lang2057=20
\par Given WIPO\rquote s mandate and expertise in the protection of =
intellectual propert
y rights, the WIPO Arbitration and Mediation Center, established in =
1994, would appear to be a logical choice for administering =
international domain name/trademark dispute settlement =
proceedings.}{\cs35\super \chftn {\footnote \pard\plain=20
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\lang2057 The Center is an administrative unit and does not =
itself de
cide cases.  It administers dispute settlement procedures conducted by =
mediators or arbitrators selected from among the roster of over 700 =
experts maintained by the Center.  }{\f2\fs24\ul\lang2057 =
See}{\f2\fs24\lang2057  WIPO Comments, }{
\f2\fs24\ul\lang2057 supra}{\f2\fs24\lang2057  note __ , at 1.  For =
further information see }{\field{\*\fldinst {\fs24  GOTOBUTTON BM_F_ =
}{\f2\fs24\lang2057 http://www.arbiter.wipo.int.}}{\fldrslt =
}}{\f2\fs24\lang2057  }}}{\f2\fs24\lang2057=20
  As noted in WIPO\rquote s comments on the U.S. Government\rquote s =
Green Paper, the Center maintains an on-line, Internet-based facility =
for administering domain name disputes, developed mainly as part of =
WIPO\rquote s participation in t
he work of IAHC and POC.}{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 ., at =
2.}}}{\f2\fs24\lang2057=20
  The Center had been designated to administer on-line mediation, =
expedited arbitration and an administrative domain name challenge panel =
procedure for registrations in the DNS.}{\cs35\super \chftn {\footnote =
\pard\plain \sa240\nowidctlpar\adjustright=20
\fs20 {\cs35\super \chftn }{\f2\fs24\ul\lang2057 Ibid}{\f2\fs24\lang2057 =
..  }{\f2\fs24\ul\lang2057 See also supra}{\f2\fs24\lang2057  note __ and =
accompanying text.}}}{\f2\fs24\lang2057=20
  While procedural rules already exist for on-line mediation and on-line =
expedited arbitration, the gTLD-MoU also envisaged the development of =
both procedural and substantive guidelines for the administrative =
challenge panel procedures.}{\cs35\super=20
\chftn {\footnote \pard\plain \sa240\nowidctlpar\adjustright \fs20 =
{\cs35\super \chftn }{\f2\fs24\lang2057 gTLD-MoU, }{\f2\fs24\ul\lang2057 =
supra}{\f2\fs24\lang2057  note __ ,at ___ .}}}{\f2\fs24\lang2057=20
\par=20
\par The recommendations developed by WIPO in the context of its =
Internet Domain Name Process regarding the protection of intellectual =
property rights associated with Internet domain names, including dispute =
resolution, are contained in the WIPO Final Report.}
{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\ul\lang2057 Supra}{\f2\fs24\lang2057  note __ =
..}}}{\f2\fs24\lang2057=20
  The document is a result of a series of consultations between WIPO =
officials and the Internet community and is intended to reflect the =
comments made and concerns expressed during the consultation process.  T
he following discussion is limited to describing the main =
recommendations included in the WIPO Final Report, focusing on those =
that have proved or may prove controversial.}{\cs35\super \chftn =
{\footnote \pard\plain \sa240\nowidctlpar\adjustright \fs20 {
\cs35\super \chftn }{\f2\fs24\ul\lang2057 See infra}{\f2\fs24\lang2057  =
note __ and accompanying text.}}}{\f2\fs24\lang2057=20
\par=20
\par The WIPO Final Report is concerned with the three issues identified =
in the White Paper:  dispute resolution procedures; the protection of =
famous and well-known marks, and the assessment of the effects on =
intellectual property of the possible introduction=20
of new gTLDs.  WIPO added a fourth issue to the list, namely, \ldblquote =
dispute prevention or practices in the administration of the DNS that =
are designed to reduce the incidence of conflict between domain names =
and intellectual property rights.
\rdblquote }{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 ., para. =
27.}}}{\f2\fs24\lang2057=20
\par=20
\par W
ith regard to the last point, the WIPO Final Report adopts a series of =
recommendations regarding improved registration practices in order to =
reduce the disjunction between cyberspace and the real world and, =
consequently, to minimize the likelihood of conf
licts between the domain name system and intellectual property rights.  =
These recommendations include, }{\f2\fs24\ul\lang2057 inter =
alia}{\f2\fs24\lang2057=20
, the requirement that domain name applicants be required to provide =
accurate and reliable contact information}{\cs35\super \chftn {\footnote =
\pard\plain \sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\ul\lang2057 Id}{
\f2\fs24\lang2057 ., para. 65.  This recommendation has been adopted in =
ICANN Statement of Registrar Accreditation Policy, 8 Feb. 1999, =
}{\field{\*\fldinst {\fs24  GOTOBUTTON BM_G_ }{\f2\fs24\lang2057 =
http://icann.org/policy_statement.html.}}{\fldrslt }}{
\f2\fs24\lang2057  }}}{\f2\fs24\lang2057 \sect }\sectd =
\marglsxn1303\sbknone\linex0\headery709\footery709\colsx709\sectdefaultcl=
 \pard\plain \sl360\slmult0\nowidctlpar\adjustright \fs20 =
{\f2\fs24\lang2057=20
 and that this information be made publicly available in real =
time;}{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057=20
.., para. 81.  WIPO recommends, however, that contac
t details be collected and made available only for limited purposes and =
that the domain name registration agreement provide a clear notice of =
the purposes of collection and availability of contact details.  =
}{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057=20
.., para. 90.}}}{\f2\fs24\lang2057  that a domain name should not be =
activated by the registration authority before a payment has been =
made;}{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn }{
\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 ., at para. =
96.}}}{\f2\fs24\lang2057  and that each domain name registration =
agreement contain a representation that, to the best of the =
applicant\rquote s knowledge, neither the registration of the domain nam
e nor the manner in which it is to be used infringes the intellectual =
property rights of another party, and that the information provided by =
the applicant is true and accurate.}{\cs35\super \chftn {\footnote =
\pard\plain \sa240\nowidctlpar\adjustright=20
\fs20 {\cs35\super \chftn }{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 =
.., para. 109.  In case of inaccurate or unreliable information the =
domain name can be cancelled by the registration authority.  =
}{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057=20
.., paras. 119, 123 ---.}}}{\f2\fs24\lang2057   These recommendations =
have proved largely uncontroversial and are likely to be adopted.
\par=20
\par Recognizing that enhanced registration procedures alone will be =
unlikely to eliminate a
ll conflicts between domain names and trademarks, WIPO adopted a number =
of recommendations regarding dispute resolution procedures.  These =
recommendations cover the bulk of the report and they deal with a number =
of issues, including the role and scope of=20
a
lternative administrative dispute resolution procedures; guiding =
principles in the design of the administrative dispute-resolution =
policy; mandatory administrative procedures for abusive registrations; =
the availability of voluntary arbitration; and the ro
le of mediation.  In response to criticisms leveled against the Interim =
Report, the Final Report limited the scope of the proposed alternative =
dispute resolution procedure so that it would be available \ldblquote=20
only in respect of deliberate, bad faith, abusive, domain name =
registrations or \lquote cybersquatting\rquote  and is not applicable to =
disputes between parties with competing rights acting in good =
faith.\rdblquote }{\cs35\super \chftn {\footnote=20
\pard\plain \sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 ., para. 135.  The Final =
Report also limited the scope of its recommendations to violations of =
trademark rights, ex
cluding other intellectual property rights.  }{\f2\fs24\ul\lang2057 =
Ibid}{\f2\fs24\lang2057 .}}}{\f2\fs24\lang2057=20
\par=20
\par According to the Final Report, the proposed alternative dispute =
resolution system would not be exclusive in the sense that it would not =
deny the parties access to court litigation.}{\cs35\super \chftn =
{\footnote \pard\plain \sa240\nowidctlpar\adjustright=20
\fs20 {\cs35\super \chftn }{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 =
.., para. 140.}}}{\f2\fs24\lang2057   In order to create greater =
certainty about the competent jurisdiction, the Report recommended that =
\ldblquote=20
the domain name applicant be required, in the domain name registration =
agreement, to submit, without prejudice other potentially applicable =
jurisdictions, to t
he jurisdiction of the courts of (i) the country of domicile of the =
domain name applicant, and (ii) the country where the registrar is =
located.\rdblquote }{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn=20
}{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 ., para. 147. =
}}}{\f2\fs24\lang2057   Such submission would not be exclusive in the =
sense that it would be \ldblquote without prejudice to=20
the possibility of establishing jurisdiction under normally applicable =
law.\rdblquote }{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 ., para. 142.}}}{
\f2\fs24\lang2057=20
\par=20
\par Recognizing the limitations associated with court litigation in =
connection with a borderless medium such as the Internet, including the =
cost of court litigation
 as opposed to the cost of obtaining a domain name registration, the =
Report ended up recommending that a mandatory administrative procedure =
be adopted uniformly across all open gTLDs.}{\cs35\super \chftn =
{\footnote \pard\plain=20
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\lang2057 Arbitration would remain available on an optional =
basis.  }{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 ., para. =
235.}}}{\f2\fs24\lang2057=20
  Because the procedure would be administrative in nature, the remedies =
available would be limited to the cancellation of the domain name =
registration, the transfer of the domain name to the third party =
complainant, and the allocation of the responsibil
ity for payment of the costs of the proceedings.}{\cs35\super \chftn =
{\footnote \pard\plain \sa240\nowidctlpar\adjustright \fs20 {\cs35\super =
\chftn }{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 ., para. =
188.}}}{\f2\fs24\lang2057=20
\par=20
\par The system recommended by WIPO would be effective and technically =
advanced.  Three-member panels would be required to make their =
determinations within forty-five days of the=20
initiation of the procedure.  The procedural rules of the dispute =
resolution service providers would have to include on-line facilities, =
allowing secure electronic filing of all pleadings.  Registration =
authorities would be required to implement the deter
minations made by the administrative panels, and all determinations =
would be made public via the Internet, to promote the development of a =
consistent body of precedent.}{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {
\cs35\super \chftn }{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 ., para. =
220.  As the administrative process would not be exclusive, no appeal =
would be available for the dissatisfied party.}}}{\f2\fs24\lang2057=20
\par=20
\par WIPO\rquote s recommendations relating to famous and well-known =
marks envisage the introduction of an exclusion method whereby certain =
character strings (common words) would be made non-available for =
registration as doma
in names by a third party.  According to the recommendations, the =
mechanism for obtaining an exclusion should provide, inter alia, for a =
centralized administrative procedure to make determinations in respect =
of the exclusion applications.  Applications wo
uld be made public on one centralized website and interested third =
parties would be entitled to participate in the =
proceedings.}{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\ul\lang2057 Id}{
\f2\fs24\lang2057 ., para. 280.  The determinations made by the =
administrative panels would have no binding effect on national or =
regional industrial property offices or national courts.  =
}{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 ., para. 282.}}}{
\f2\fs24\lang2057   The Final Report suggests that, consistent with its =
mandate, WIPO would be available to provide the centralized =
administration of the exclusion mechanism.}{\cs35\super \chftn =
{\footnote \pard\plain \sa240\nowidctlpar\adjustright \fs20=20
{\cs35\super \chftn }{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 ., =
para. 279(iii).}}}{\f2\fs24\lang2057=20
\par=20
\par The exclusion method would be supplemented by an evidentiary device =
extending the protection afforded by exclusion to misleadingly similar, =
as well as the same, domain name registrations.  According to this =
device, the granting of an exclusion would=20
\par=20
\par }\pard \li583\sl360\slmult0\nowidctlpar\adjustright =
{\f2\fs24\lang2057 \ldblquote giv
e rise to an evidentiary presumption, if favor of the holder of an =
exclusion, in the administrative procedure in such a way that, upon =
showing that the respondent held a domain name that was the same as, or =
misleadingly similar to, the mark that was the s
ubject of an exclusion and that the use of the domain name was likely to =
damage the interests of the holder of the exclusion, the respondent =
would have the burden of justifying the registration of the domain =
name.\rdblquote }{\cs35\super \chftn=20
{\footnote \pard\plain \sa240\nowidctlpar\adjustright \fs20 {\cs35\super =
\chftn }{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 ., para. =
291.}}}{\f2\fs24\lang2057=20
\par }\pard \sl360\slmult0\nowidctlpar\adjustright {\f2\fs24\lang2057=20
\par Pursuant to the terms o
f reference of the WIPO Internet Domain Name process, WIPO also =
considered the effects of adding new gTLDs and related dispute =
resolution procedures on trademark and intellectual property holders.  =
Having analyzed the scope of the problem, the Report conc
luded that, if the recommended improvements regarding registration =
practices, dispute resolution as well as famous and well-known marks =
were implemented, new gTLDs could be introduced, provided that they are =
introduced \ldblquote=20
in a slow and controlled manner,\rdblquote  taking into account the =
experience gained with the recommended new practices and =
procedures.}{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn }{
\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 ., para. =
342.}}}{\f2\fs24\lang2057=20
\par=20
\par }\pard \qc\sl360\slmult0\nowidctlpar\adjustright {\f2\fs24\lang2057 =
III.  THE CASE FOR AN ENHANCED DOMAIN NAME SYSTEM
\par }\pard \sl360\slmult0\nowidctlpar\adjustright {\f2\fs24\lang2057=20
\par While the WIPO Final Report is commended as representing a =
\ldblquote substantial improvement\rdblquote  on the Interim =
Report,}{\cs35\super \chftn {\footnote \pard\plain =
\nowidctlpar\adjustright \fs20 {\cs35\super \chftn }{\f2\fs24\lang2057=20
Michael Froomkin, }{\f2\fs24\ul\lang2057 A Commentary on WIPO\rquote s =
}{\i\f2\fs24\ul\lang2057 The Management of Internet Names and Addresses: =
 Intellectual Property Issues}{\f2\fs24\lang2057 , para. 1, =
}{\field{\*\fldinst {\fs24  GOTOBUTTON BM_H_ }{
\f2\fs24\lang2057 =
http://www.law.miami.edu/~amf/commentary.html.}}{\fldrslt =
}}{\f2\fs24\ul\lang2057  (hereinafter \ldblquote Commentary\rdblquote ).
\par \tab For criticism of the Interim Report, see, e.g., Michael =
Froomkin, A Critique of WIPO\rquote s RFC 3}{\f2\fs24\lang2057 , =
Preliminary Draft \endash - Subject to Revision, Feb. 15, 1999, =
}{\field{\*\fldinst {\fs24  GOTOBUTTON BM_I_ }{\f2\fs24\lang2057=20
http://www.law.miami.edu/~amf/critique.htm.}}{\fldrslt =
}}{\f2\fs24\lang2057  (hereinafter \ldblquote Critique\rdblquote ); =
}{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 ., }{\f2\fs24\ul\lang2057 =
Major Flaws in the WIPO Domain Name Proposal \endash=20
- A Quick Guide}{\f2\fs24\lang2057 , }{\field{\*\fldinst {\fs24  =
GOTOBUTTON BM_J_ }{\f2\fs24\lang2057 =
http://www.law.miami.edu/~amf/quickguide.htm.}}{\fldrslt =
}}{\f2\fs24\lang2057  (hereinafter \ldblquote Quick Guide\rdblquote=20
).  Professor Froomkin served as a \ldblquote public interest =
representative\rdblquote  on the WIPO \ldblquote Panel of =
Experts\rdblquote  during the consultation proceedings.  He emphasizes, =
however, that his criticism is \ldblquote=20
a strictly personal analysis.\rdblquote }{\fs24\lang2057     =
}{\f2\fs24\lang2057 Froomkin, }{\f2\fs24\ul\lang2057 =
Critique}{\f2\fs24\lang2057 , at 1.=20
\par }}}{\f2\fs24\lang2057 \tab }{\f2\fs24\ul\lang2057 See =
also}{\f2\fs24\lang2057  }{\f2\fs24\ul\lang2057 Comments of Carl =
Oppendahl in Response to the WIPO Interim Report dated December 23, 1998 =
(WIPO RFC-3)}{\f2\fs24\lang2057 , }{\field{\*\fldinst {
\f2\fs24\lang2057\super  GOTOBUTTON BM_K_ }{\f2\fs24\lang2057 =
http://www.patents.com/nsi/rfc3comments.html;}}{\fldrslt =
}}{\f2\fs24\lang2057  (in many respects echoing Froomkin\rquote s =
criticism); }{\f2\fs24\ul\lang2057=20
Comments submitted by Laina Raveendran Greene}{\f2\fs24\lang2057 , =
}{\field{\*\fldinst {\f2\fs24\lang2057\super  GOTOBUTTON BM_L_ =
}{\f2\fs24\lang2057 =
http://www.cyber.law.harvard.edu/property/domain/RFC3critique.html.}}{\fl=
drslt }}{\f2\fs24\lang2057=20
 (arguing that the RFC-3 is heavily in favor of famous trademark =
holders); Mike Doughney, }{\f2\fs24\ul\lang2057 =
Comment}{\f2\fs24\lang2057 , }{\field{\*\fldinst =
{\f2\fs24\lang2057\super  GOTOBUTTON BM_M_ }{\f2\fs24\lang2057=20
http://www.wipo2.wipo.int/cgi-bin/ifetch?rfc3+129382516+F.}}{\fldrslt =
}}{\f2\fs24\lang2057  (criticizing the WIPO proposal for being =
\ldblquote completely silent about, and grant[ing] no protection for, fr
ee speech and social and political commentary [and for] fail[ing] to =
address an individual\rquote s right to use his or her own name or =
initials as part of a domain name, even for their own personal, =
non-commercial use.\rdblquote ); Jason M. Vogel, }{
\f2\fs24\ul\lang2057 The Future of the DNS:  Does WIPO\rquote s Final =
Report Solve the Domain Name/Trademark Puzzle?}{\f2\fs24\lang2057 , at =
2, }{\field{\*\fldinst {\f2\fs24\lang2057\super  GOTOBUTTON BM_N_ =
}{\f2\fs24\lang2057=20
http://www.geocites.com/Eureka/Promenade/5610/vogel.html.}}{\fldrslt =
}}{\f2\fs24\ul\lang2057  (analyzing the Interim Report and its =
criticisms).}{\f2\fs24\lang2057  the recommendations have not met with =
unanimous approva
l.  The crux of the criticism voiced during the process and thereafter =
is that WIPO\rquote=20
s recommendations are biased in favor of intellectual property holders =
and fail to take sufficiently into account the interests of those, =
particularly private citizens, who
 are mainly interested in using the Internet for non-commercial =
purposes, i.e., as a medium of communication and exchange of =
information.}{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn }{
\f2\fs24\ul\lang2057 See, e.g.}{\f2\fs24\lang2057 , Froomkin, =
}{\f2\fs24\ul\lang2057 Commentary}{\f2\fs24\lang2057 , =
}{\f2\fs24\ul\lang2057 supra}{\f2\fs24\lang2057  note __, paras. 84-88; =
Vogel, }{\f2\fs24\ul\lang2057 supra}{\f2\fs24\lang2057=20
 note __, at 2, 19-20. }}}{\f2\fs24\lang2057   Critics have sugg
ested that, in order to protect the interests of non-commercial users, =
new, privacy-enhanced gTLDs should be introduced.  This would =
substantially reduce conflicts most likely to harm trademark =
owners.}{\cs35\super \chftn {\footnote \pard\plain=20
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\lang2057 Froomkin, }{\f2\fs24\ul\lang2057 =
Commentary}{\f2\fs24\lang2057 , }{\f2\fs24\ul\lang2057 =
supra}{\f2\fs24\lang2057  note ___, paras. 77-83, =
151.}}}{\f2\fs24\lang2057    =20
\par=20
\par Apart from free speech concerns, certain other aspects of the =
recommendations have also been noted with dissatisfaction, in particular =
those relating to the treatment of famous or well-known marks.  =
According to the critics, the recommendations a
re essentially flawed, because \ldblquote there is no consensus =
procedure for identifying }{\f2\fs24\ul\lang2057 =
globally}{\f2\fs24\lang2057  famous or }{\f2\fs24\ul\lang2057 =
globally}{\f2\fs24\lang2057  well-known marks.\rdblquote }{\cs35\super =
\chftn=20
{\footnote \pard\plain \sa240\nowidctlpar\adjustright \fs20 {\cs35\super =
\chftn }{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 ., para. 91. =
(emphasis in original)}}}{\f2\fs24\lang2057=20
  The exclusion method, in particular, would amount to the creation of a =
new substantive right \endash - an exclusive right to a domain name =
\endash - where none existed before.}{\cs35\super \chftn {\footnote =
\pard\plain \sa240\nowidctlpar\adjustright=20
\fs20 {\cs35\super \chftn }{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 =
.., paras. 95-102; Oppedahl, }{\f2\fs24\ul\lang2057 =
supra}{\f2\fs24\lang2057  note, at 6.}}}{\f2\fs24\lang2057   In the =
absence of an adversary process, there would be \ldblquote=20
no structural incentive for keeping the number of specially privileged =
marks within reasonable bounds.\rdblquote }{\cs35\super \chftn =
{\footnote \pard\plain \sa240\nowidctlpar\adjustright \fs20 {\cs35\super =
\chftn }{\f2\fs24\lang2057 Froomkin, }{
\f2\fs24\ul\lang2057 Commentary}{\f2\fs24\lang2057 , para. =
103.}}}{\f2\fs24\lang2057=20
\par=20
\par The criticisms leveled against WIPO\rquote s recommendations =
reflect the dual purpose of the Internet as a medium of communication, =
on the one hand, and as an emerging international electronic marke
tplace, on the other.  Different policy considerations apply to these =
two functions.  While it is important to ensure that the Internet domain =
name system is managed in a manner that will not unnecessarily encumber =
the freedom of speech, communication and
 expression on the Internet, it is also important that the exercise of =
these freedoms will not result in infringements of existing intellectual =
property rights, particularly trademarks.
\par=20
\par The tension that currently exists between the public\rquote s =
interest in free speech and the trademark holders\rquote=20
 concern for their legitimate rights is not easily reconcilable.  =
Indeed, it seems that many of the problems that have been identified and =
debated in connection with the WIPO Internet Domain Name Process can be =
trac
ed back to, and originate from, the existing structure of the Internet =
domain name system, which was designed at a time when the Internet had =
not yet become the global medium that it currently is and when the =
potential of the Internet as a medium of globa
l electronic commerce was not yet foreseen.}{\cs35\super \chftn =
{\footnote \pard\plain \sa240\nowidctlpar\adjustright \fs20 {\cs35\super =
\chftn }{\f2\fs24\lang2057 For a description of the structure of the =
current domain name system see Jon Postel, }{
\f2\fs24\ul\lang2057 Domain Name System Structure and =
Delegation}{\f2\fs24\lang2057 , March 1994, }{\field{\*\fldinst {\fs24  =
GOTOBUTTON BM_O_ }{\f2\fs24\lang2057 =
ftp://rs.internic.net/rfc1591.txt.}}{\fldrslt }}{\f2\fs24\lang2057  =
}}}{\f2\fs24\lang2057=20
  The=20
drastic increase in Internet usage and the emergence of the Internet as =
a medium of commercial transactions require that the existing structure =
be revised and a more comprehensive, coherent and user-friendly domain =
name structure be established.  The enha
nced structure should reflect both the global usage of the Internet as =
well as its dual purpose nature as a medium of communication and =
commerce.
\par=20
\par It is suggested that such an enhanced Internet domain name system =
consist of three levels:  The first, top lev
el domain would consist exclusively of ccTLDs; the second level would =
consist of functional identifiers, including the current generic (both =
open and restricted) TLDs, as well as new SLDs to be created for =
individual, non-commercial users; and the third l
evel would consist of a unique identifier (\ldblquote ILD\rdblquote=20
), leaving the domain open and free of prior restraints.  As in the =
existing system, additional levels could be added, at the discretion of =
the entity managing the ccTLD in question, and such additional levels
 should also remain free of conceptual constraints.
\par=20
\par At the top level, the country-code TLDs (ccTLDs) would be used =
exclusively.  All the existing generic (open and restricted) TLDs =
(\ldblquote .com,\rdblquote  \ldblquote .net,\rdblquote  \ldblquote =
..int,\rdblquote  \ldblquote .gov,\rdblquote  \ldblquote=20
..edu,\rdblquote  \ldblquote .mil\rdblquote ) should be relegated to the =
level of SLDs.}{\cs35\super \chftn {\footnote \pard\plain =
\nowidctlpar\adjustright \fs20 {\cs35\super \chftn }{\f2\fs24\lang2057=20
The Green Paper contains a similar idea, suggesting that \ldblquote [i]t =
may also be appropriate to move the gTLDs traditionally reserved for =
U.S. government use (i.e. .gov and .mil), into a reformulated .us =
ccTLD.\rdblquote   Green Paper, }{
\f2\fs24\ul\lang2057 supra}{\f2\fs24\lang2057  note __, at 10.  The =
Green Paper also noted that \ldblquote=20
the expanded use of the .us TLD could alleviate some of the pressure for =
new generic TLDs and reduce conflicts between American companies and =
others vying for the same domain name.\rdblquote }{\fs24\lang2057   =
}{\f2\fs24\ul\lang2057 Ibid}{
\f2\fs24\lang2057 .  =20
\par }}}{\f2\fs24\lang2057 \tab }{\f2\fs24\ul\lang2057 See =
also}{\f2\fs24\lang2057  White Paper, }{\f2\fs24\ul\lang2057 =
supra}{\f2\fs24\lang2057  note __, at 14 (noting that \ldblquote=20
there is much opportunity for enhancing the .us domain space, and .us =
could be expanded in many ways without displacing the current =
structure.\rdblquote )    This would result in a nominal, or virtual, =
localization of the TLD system,
 thus making the domain name system conceptually consistent with the =
intellectual property rights system, particularly that applying to =
trademarks, which is also generally territorial in nature.  The =
geographical anchoring of the top level domain via the=20
use of ccTLDs need not be \ldblquote real,\rdblquote  i.e., it need not =
reflect the actual geographical situs of the domain name holder.  It =
need only be conceptually, or virtually geographical \endash=20
- if the competent territorial jurisdiction so wished, the ccTLD =
assigned to its m
anagement could continue to remain open for registration by applicants =
from other jurisdictions.  The only exception would be made for =
commercial domain name holders, who should be able to register their =
domain names only under the ccTLD of their country=20
of incorporation or establishment, or principal place of business, for =
reasons explained below.
\par=20
\par The localization of the TLD and the relegation of the \ldblquote =
..com\rdblquote  TLD to the SLD level would have the beneficial result of =
reducing the need for, and the likelihood=20
of, international litigation about domain names and trademarks.  In most =
instances two domain names with identical SLDs and ILDs could co-exist, =
if registered under different ccTLDs, e.g., \ldblquote =
showbiz.com.fi\rdblquote  and \ldblquote=20
showbiz.com.us.\rdblquote   Famous and well-known marks would constitute =
the sole exception to this rule.  Consequently, if the trademark =
\ldblquote showbiz\rdblquote  used as a domain name in \ldblquote =
showbiz.com.us\rdblquote=20
 were famous or well-known in Finland, the competing Finnish domain name =
\ldblquote showbiz.com.fi\rdblquote  could be considered an infringement =
of the U.S.-based trademark \ldblquote showbiz.\rdblquote=20
  Considering the international nature of the conflict, recourse could =
be appropriately had to an alternative dispute settlement procedure, =
along the lines set out in the WIPO Final Report.  As the dispute would =
be
 of a commercial nature and in most instances between two companies, =
there would be no \ldblquote weaker\rdblquote  party involved and no =
issues involving public interest would arise, thus making much of the =
criticism leveled against WIPO\rquote=20
s recommendations inapplicable in the
 situation.  Similarly, an applicable law provision of the type outlined =
in the WIPO Final Report would also be appropriate, as the resolution of =
Internet-based disputes relating to famous and well-known marks =
essentially requires the development and appl
ication of uniform, global standards.}{\cs35\super \chftn {\footnote =
\pard\plain \nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\ul\lang2057 See}{\f2\fs24\lang2057  Final Report, paras. =
283-87 (\ldblquote Criteria for Making Determinations
\rdblquote )  }{\f2\fs24\ul\lang2057 See also}{\f2\fs24\lang2057  David =
W. Maher, }{\f2\fs24\ul\lang2057 Trademarks on the Internet:  Who\rquote =
s in Charge?}{\f2\fs24\lang2057 , at 7, =
http://info.isoc.org/isoc.whatis/...s/inet/96/proceedings/f4/f4_2.ht
m (arguing that \ldblquote=20
there are good reasons for creating a new international jurisdiction, =
based on treaty, to resolve trademark disputes.  Such a jurisdiction, =
taking its legal principles from domestic law of most nations, and the =
growing body of internationa
l law derived from existing trademark treaties, could be most welcome.  =
It might be the best vehicle for the further development of the concepts =
of dilution and unfair competition to handle new forms of infringement =
on the Internet.\rdblquote ) =20
\par }}}{\f2\fs24\lang2057 \tab A conflict-of-law
s approach is likely to be inadequate because of the unpredictable =
operation of conflict-of-laws rules.  Indeed, one of the reasons =
underlying the popularity of international commercial arbitration as a =
means of resolving international business disputes a
nd the resulting displacement of national courts as fora for settling =
international business disputes is arguably the unpredictability of the =
traditional conflict-of-laws analyses.=20
\par Unlike the ccTLD level, which would be nominally territorial =
(\ldblquote really\rdblquote  terr
itorial for commercial domain name holders), the SLD level would reflect =
the function, or business, of the domain name holder.  Thus, it would =
consist of the current gTLDs and restricted TLDs, i.e., \ldblquote =
..com,\rdblquote  \ldblquote .net,\rdblquote =20
\ldblquote .int,\rdblquote  \ldblquote .gov,\rdblquote  \ldblquote =
..edu,\rdblquote  and \ldblquote .mil.\rdblquote   Addi
tional, linguistically similarly intuitive and also not-English-based =
SLDs could, and should, be created under the different ccTLDs, to =
increase the user-friendliness of the DNS and to allow the introduction =
of competition into the domain name business.}{
\cs35\super \chftn {\footnote \pard\plain \sa240\nowidctlpar\adjustright =
\fs20 {\cs35\super \chftn }{\f2\fs24\lang2057 T
he introduction of language-dependent, functional SLDs would also =
greatly increase domain name space, which is rapidly becoming a scarce =
resource.}}}{\f2\fs24\lang2057=20
  Although the existing SLDs are intended to intuitively describe the =
function of the domain name holder (\ldblquote .gov\rdblquote  for =
governmental entities; \ldblquote .edu\rdblquote=20
 for educational institutions, etc.), the logic of the descriptions has =
already broken down, and such descriptions could continue to remain =
nominal, or virtual, in the sense that, if the sovereign authority, or =
privatiz
ed entity, managing the applicable ccTLD so wished, certain SLDs could =
remain open, as there is normally no functional need to police the =
reality of the description.  An exception should be made, however, for =
the commercial function description=20
\ldblquote .com\rdblquote  and other functionally identical, =
non-English-based descriptions, as these commercial SLDs should be made =
available only to entities incorporated, established or otherwise =
based}{\cs35\super \chftn {\footnote \pard\plain=20
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\lang2057 E.g., individuals using the country in question as =
their principal place of business.  }}}{\f2\fs24\lang2057=20
 in the country in question, i.e., the country of the applicable ccTLD, =
who intend to use the website for commercial purposes, i.e., for =
promotion, advertising, marketing, sale and/or distribution of products =
or services. =20
\par Because all the current TLDs are conceptually applicable only to =
entities and not to individuals engaged in non-commercial activities, a =
new domain name, \ldblquote .ind\rdblquote  (or \ldblquote =
..per\rdblquote  or comparable)}{\cs35\super \chftn=20
{\footnote \pard\plain \sa240\nowidctlpar\adjustright \fs20 {\cs35\super =
\chftn }{\f2\fs24\lang2057 As with regard to \ldblquote .com,\rdblquote  =
other SLDs intuitively referring to individual, personal use could=20
be introduced under the various ccTLDs, to allow intuitive, =
language-dependent identification of the function of the SLD, =
consequently to increase user-friendliness, and to allow the =
introduction of competition.}}}{\f2\fs24\lang2057=20
 should be introduced, to create a zone on the Internet for those =
individual users who intend to use the corresponding website for =
expressive, non-commercial purposes.}{\cs35\super \chftn {\footnote =
\pard\plain \sa240\nowidctlpar\adjustright \fs20 {
\cs35\super \chftn }{\f2\fs24\lang2057 The introduction of a =
non-commercial domain has also been proposed by the critics.  =
}{\f2\fs24\ul\lang2057 See supra}{\f2\fs24\lang2057  note __ and =
accompanying text.  The i
ntroduction of a non-commercial SLD does not necessarily entail that the =
applicants for these names be entitled to keep their all contact details =
confidential, as there is no conceptual link between these two.  This =
linkage was one of the reasons WIPO ref
rained from recommending the introduction of non-commercial TLDs.  =
}{\f2\fs24\ul\lang2057 See}{\f2\fs24\lang2057  WIPO Final Report, para. =
85.  WIPO recommended, however, that \ldblquote=20
further consideration be given to the introduction of one or several =
use-restricted, non-commercial domains as a means of a
ccommodating privacy concerns and that ICANN consider the possibility of =
initiating a separate process and consultation on this =
question.\rdblquote )  }{\f2\fs24\ul\lang2057 Id}{\f2\fs24\lang2057 ., =
para. 86.}}}{\f2\fs24\lang2057=20
  Furthermore, unlike the \ldblquote .com\rdblquote  and other =
commercial SLDs, \ldblquote .ind\rdblquote  and other non-commercial =
SLDs sho
uld remain unrestricted, open domains, subject only to possible =
residence requirements applicable to the ccTLD in question.
\par=20
\par }{\fs24\lang2057 \sect }\sectd =
\marglsxn1303\margtsxn1417\margbsxn1417\sbknone\linex0\headery709\footery=
709\colsx709\sectdefaultcl \pard\plain =
\sl360\slmult0\nowidctlpar\adjustright \fs20 {\f2\fs24\lang2057=20
To introduce the distinction between commercial and non-commercial =
sites, a domain name applicant should be required to identify in his =
domain name application the purpose for which he intends to use the =
corresponding website.  Applicants who indicate a
n intention to use the corresponding website for commercial purposes =
would be required to provide evidence of incorporation or establishment =
in the jurisdiction corresponding to the ccTLD.}{\cs35\super \chftn =
{\footnote \pard\plain=20
\nowidctlpar\adjustright \fs20 {\cs35\super \chftn }{\f2\fs24\lang2057 =
Different considerations would apply to individuals, who should be
 required to present evidence that they are already engaged in business =
activities or state that they indicate to use the website for commercial =
activities, using the country in question as their principal place of =
business.  If such evidence is produced=20
or such a statement made, the individual will be treated as a merchant =
for purposes of applicable law, including that governing intellectual =
property rights.
\par }}}{\f2\fs24\lang2057 \tab The fact that the domain name would =
always identify the place of incorporation or establishment o
f the commercial domain name holder would also increase transparency in =
international electronic commerce and thus enhance the protection of =
consumers, who would be able to infer from the domain name the =
geographical location of the business they are deal
i
ng with and, consequently, the law applicable to its commercial =
activities.  In this connection they could also, but would not have to, =
agree to an alternative dispute resolution clause along the lines =
proposed in the WIPO Final Report.  Given the fairly=20
s
traightforward nature of domain name/trademark disputes, owners of =
famous or well-known marks would be most likely to agree to such =
clauses, as an on-line administrative procedure may seem an attractive =
option compared to cross-border litigation, due to t
he low cost and effectiveness of the administrative procedure, as well =
as the likely high level of intellectual property law expertise to be =
represented on WIPO panels.=20
\par=20
\par Different considerations should apply to third level domains =
(\ldblquote IDLs\rdblquote ) registered under
 the two types of SLDs, commercial and non-commercial.  There should be =
no prior restraints on what could be used as a third-level identifier =
under the non-commercial SLDs, with the possible exception of decency =
and other public interest considerations, t
o
 be determined by the competent sovereign authority, or a privatized =
entity, administering the relevant ccTLD.  The absence of prior =
restraints would effectively guarantee freedom of speech and expression =
under these domains and remove the need to apply t
he type of exclusion methods proposed in the WIPO Final Report.  Because =
of the existence of two different types of SLDs, commercial and =
non-commercial, a nominal \ldblquote conflict\rdblquote=20
 between two identical ILDs but registered under different SLDs (e.g., =
\ldblquote .com\rdblquote  and \ldblquote .ind,\rdblquote  =
respectively), should not be considered a trademark violation.  =
Consequently, domain names such as \ldblquote showbiz.ind.us
\rdblquote  and \ldblquote showbiz.com.us\rdblquote  should normally be =
allowed to co-exist even if the word \ldblquote showbiz\rdblquote  were =
also a famous or well-known trademark, as=20
the former domain, unlike the latter, is not intended to be used for =
commercial purposes and therefore no intellectual property issues could =
arise.}{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn }{
\f2\fs24\lang2057 Subject to the law applicable to the ccTLD.  =
Consequently, if the applicable law provides protection agains
t dilution, the described scenario could amount to a trademark/domain =
name conflict; the issue would be for the competent local courts (or =
local alternative dispute resolution bodies, if such exist) to decide.  =
The possible conflict would normally not giv
e rise to cross-border litigation, because the fact that both parties =
would be registered under the same ccTLD would likely mean that they =
also reside or are otherwise based in the same country.  (Suggesting =
that it will not be advisable to register one
\rquote s domain name under a ccTLD other than that of the country of =
residence.)  }}}{\f2\fs24\lang2057=20
  In effect, the two-tier system would create two zones on the Internet, =
one where freedom of speech, expression and privacy would dominate, and =
another one, a marketplace governed by commercial laws and intellectual =
property rights.}{\cs35\super \chftn=20
{\footnote \pard\plain \sa240\nowidctlpar\adjustright \fs20 {\cs35\super =
\chftn }{\f2\fs24\lang2057 Thus the proposed system would effectively =
obviate the need to introduce the administrative exclusion system =
proposed in the Final Report.  }{
\f2\fs24\ul\lang2057 See also}{\f2\fs24\lang2057  Froomkin, =
}{\f2\fs24\ul\lang2057 Commentary}{\f2\fs24\lang2057 , =
}{\f2\fs24\ul\lang2057 supra}{\f2\fs24\lang2057  note __, paras. 95-101, =
146-47.}}}{\f2\fs24\lang2057=20
\par =20
\par The proposed three-level system would have three benign =
consequences:  (1) by imposing the use of ccTLDs at the top level and =
thus virtually localizing the TLDs, it would substantially reduce the =
likelihood of cross-border conflicts=20
between domain names and trademarks; as a result, cross-border =
litigation would be appropriately limited to resolving issues relating =
to the international protection of famous and well-known marks; (2) by =
restricting the use of commercial domains by makin
g
 them available solely to businesses engaged in e-commerce, the system =
would establish an electronic marketplace governed by commercial laws =
and intellectual property rights; and (3) by creating new, =
non-commercial SLDs, it would introduce a distinction b
etween commercial and non-commercial domain name holders and create a =
zone of freedom of speech, communication and expression for individual =
users on the Internet. =20
\par=20
\par Although the proposed new system would have, unlike the present =
system, an additional, thi
rd level domain, it would probably be more intuitive and thus more =
user-friendly than the existing DNS.  Because ccTLDs would be used =
exclusively as TLDs, this level would soon become for most Internet =
users as self-evident as the applicable resource disc
overy communication service (normally the \ldblquote World Wide =
Web\rdblquote  [\ldblquote www\rdblquote=20
]) that they have to indicate in order to access the relevant website.  =
Moreover, because the SLD would also have a consistent function, always =
referring to the function or business of the dom
ain name holder, users would soon learn that this level effectively =
creates two main zones on the Internet -- a commercial one designated by =
\ldblquote .com\rdblquote  and other commercial SLDs, and a =
non-commercial private zone designated by \ldblquote=20
..ind\rdblquote  and other non-commercial SLDs.  The additional, more =
specific zones designated by \ldblquote .org,\rdblquote  \ldblquote =
..net,\rdblquote  \ldblquote .int,\rdblquote  \ldblquote .edu,\rdblquote  =
\ldblquote .gov\rdblquote  and \ldblquote=20
..mil\rdblquote  would continue to remain available, although educated =
users already know that the intuitive logic embedded in these =
descriptions has to a certain extent broken down.}{\cs35\super \chftn =
{\footnote \pard\plain=20
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\lang2057 Whether an effort should be made to restore =
discipline in the allocation of these functional identifiers in =
connection with renewals of registrations deserves further discussion.
}}}{\f2\fs24\lang2057   Consequently, the effective number of domain =
name levels that users would normally have to \ldblquote =
remember\rdblquote=20
 would be no more than now, i.e., two.  Indeed, over time, once public =
awareness of the functioning of the SLD level and, in particular, the =
distinction between commercial and non-commercial SLDs, increases, the =
number of levels that would have to be=20
\ldblquote remembered\rdblquote  by the users would effectively drop =
down to one and, in case of previously known domain names and famous or =
well-known marks used as domain names, to zero.
\par=20
\par }\pard \qc\sl360\slmult0\nowidctlpar\adjustright {\f2\fs24\lang2057 =
CONCLUSION
\par }\pard \sl360\slmult0\nowidctlpar\adjustright {\f2\fs24\lang2057=20
\par The suggestions made in the present paper can be summarized as =
follows:
\par=20
\par }{\fs24\lang2057 \sect }\sectd =
\marglsxn1303\margtsxn1417\margbsxn1417\sbknone\linex0\headery709\footery=
709\colsx709\sectdefaultcl =
{\*\pnseclvl1\pndec\pnstart1\pnindent583\pnhang{\pntxtb (}{\pntxta =
)}}{\*\pnseclvl2\pndec\pnstart1\pnindent583\pnhang
{\pntxtb (}{\pntxta =
)}}{\*\pnseclvl3\pndec\pnstart1\pnindent583\pnhang{\pntxtb (}{\pntxta =
)}}{\*\pnseclvl4\pndec\pnstart1\pnindent583\pnhang{\pntxtb (}{\pntxta =
)}}{\*\pnseclvl5\pndec\pnstart1\pnindent583\pnhang{\pntxtb (}{\pntxta =
)}}{\*\pnseclvl6
\pndec\pnstart1\pnindent583\pnhang{\pntxtb (}{\pntxta =
)}}{\*\pnseclvl7\pndec\pnstart1\pnindent583\pnhang{\pntxtb (}{\pntxta =
)}}{\*\pnseclvl8\pndec\pnstart1\pnindent583\pnhang{\pntxtb (}{\pntxta =
)}}{\*\pnseclvl9\pnlcrm\pnstart1\pnindent583\pnhang}
{\listtext\pard\plain\s23 \f2 \hich\af2\dbch\af0\loch\f2 =
(1)\tab}\pard\plain =
\s23\fi-583\li583\sl360\slmult0\nowidctlpar\ls1\adjustright =
{\f2\lang2057 The countr
y code Top Level Domain Names (ccTLDs) should be used exclusively as =
TLDs.  This would allow a conceptual decentralization and geographical =
anchoring, or rooting, of the DNS, thus effectively obviating the need =
to create new TLDs.}{\cs35\super \chftn=20
{\footnote \pard\plain \sa240\nowidctlpar\adjustright \fs20 {\cs35\super =
\chftn }{\f2\fs24\lang2057 The U.S. Department of Commerce in its White =
Paper recognized the need for prudence and stability in adding new TLDs, =
noting that \ldblquote=20
[t]he challenge for deciding policy for the addition of new domains will =
be formidable.  We agree with many commenters who said that the new =
corporation [i.e., ICANN] would be the most appropriate body to make =
these decisions based on global input.
\rdblquote   White Paper, }{\f2\fs24\ul\lang2057 =
supra}{\f2\fs24\lang2057  note __, at 10.  Accordingly, the Department =
of Commerce concluded that it would not implement new gTLDs at that =
time. }}}{\f2\lang2057   The geographi
cal anchoring of TLDs via the use of ccTLDs would be conceptual, or =
virtual, rather than real \endash=20
- if the relevant territorial jurisdiction so wished, the ccTLDs =
assigned to it could continue to be open for registration by applicants =
from other jurisdictions, with the exception of commercial users;\tab=20
\par }\pard \s23\sl360\slmult0\nowidctlpar\adjustright {\f2\lang2057=20
\par {\listtext\pard\plain\s23 \f2 \hich\af2\dbch\af0\loch\f2 =
(1)\tab}}\pard =
\s23\fi-583\li583\sl360\slmult0\nowidctlpar\ls2\adjustright =
{\f2\lang2057 The current generic Top Level Domains (gTLDs), i.e., =
\ldblquote .org,\rdblquote  \ldblquote .com\rdblquote=20
 and \ldblquote .net,\rdblquote  as well as the restricted TLDs =
\ldblquote .edu,\rdblquote  \ldblquote .gov\rdblquote  and \ldblquote =
..mil\rdblquote  should be used exclusively as Second Level Domains =
(SLDs) to descri
be the function or business of the domain name holder.  The SLD =
\ldblquote .com\rdblquote=20
 and other functionally comparable, English and non-English-based SLDs =
should be reserved exclusively for domain name holders engaged in =
commercial activities.  Applicants registering a=20
domain name classified as commercial would be required to present =
evidence of incorporation or establishment in the country of the =
relevant ccTLD.  If such commercial users so wished, they could consent =
in the registration agreement to an alternative disp
ute resolution scheme;
\par }\pard\plain \sl360\slmult0\nowidctlpar\adjustright \fs20 =
{\f2\fs24\lang2057=20
\par {\listtext\pard\plain\s23 \f2 \hich\af2\dbch\af0\loch\f2 =
(1)\tab}}\pard\plain =
\s23\fi-583\li583\sl360\slmult0\nowidctlpar\ls3\adjustright =
{\f2\lang2057 A new SLD \ldblquote .ind\rdblquote=20
 and other comparable, English and non-English-based descriptions, =
should be introduced, to allow the making of a clear distinction between =
commercial and other purposes for which domain names can be used by i
ndividual domain name holders.  Individuals should be assigned =
\ldblquote .ind\rdblquote  (or comparable) as an SLD unless the purpose =
of the corresponding website will be commercial.  If an individual =
chooses the SLD \ldblquote .com\rdblquote=20
 (or another, comparable national business identifier), he will be =
treated as a merchant for purposes of applicable law, including that =
applying to intellectual property rights.=20
\par }\pard\plain \sl360\slmult0\nowidctlpar\adjustright \fs20 =
{\f2\fs24\lang2057=20
\par Given that many of the problems identified and debated during the =
WIPO Internet Domain Name Process cannot be appropriately addr
essed without enhancing the current structure of the Internet domain =
name system, the suggestions made in this paper are essentially =
addressed to ICANN rather than WIPO.  Indeed, the WIPO process and the =
following debate should be commended for raising th
ese problems to the fore and thus enabling their comprehensive analysis. =
=20
\par=20
\par According to the Memorandum of Understanding between the United =
States Department of Commerce and ICANN,}{\cs35\super \chftn {\footnote =
\pard\plain \sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\ul\lang2057 See supra}{
\f2\fs24\lang2057  note __ .}}}{\f2\fs24\lang2057  the latter will =
consider and take into account, }{\f2\fs24\ul\lang2057 inter =
alia}{\f2\fs24\lang2057 ,=20
\par=20
\par }\pard \li583\sl360\slmult0\nowidctlpar\adjustright =
{\f2\fs24\lang2057 \ldblquote=20
recommendations made by the World Intellectual Property Organization =
(WIPO) concerning:  (i) the development of a uniform approach to =
resolving trademark/domain name disputes involving cyberpiracy; (ii) a =
process for protecting famous tradem
arks in the generic top level domains; (iii) the effects of adding new =
gTLDs and related dispute resolution procedures on trademark and =
intellectual property holders; and recommendations made by other =
independent organizations concerning trademark/domain=20
name issues.\rdblquote }{\cs35\super \chftn {\footnote \pard\plain =
\sa240\nowidctlpar\adjustright \fs20 {\cs35\super \chftn =
}{\f2\fs24\ul\lang2057 DOC/ICANN Memorandum of =
Understanding}{\f2\fs24\lang2057 , }{\f2\fs24\ul\lang2057 =
supra}{\f2\fs24\lang2057=20
 note __, at 9(d).}}}{\f2\fs24\lang2057  =20
\par }\pard \sl360\slmult0\nowidctlpar\adjustright {\f2\fs24\lang2057=20
\par As ICANN has not yet made any such determinations, the debate on =
WIPO\rquote s recommendations will and should continue.  The Internet =
community deserves a more comprehensive, coherent and user-friendly =
domain name system that preempts the Internet
\rquote s degeneration into a breeding ground for domain name/trademark =
disputes by appropriately distinguishing between the Internet\rquote s =
marketplace and communicative functions, thus reconciling the
 legitimate interests of the general public and the justified concerns =
of the intellectual property owners.  This is not an unachievable =
goal.}{
\par }}
------=_NextPart_000_0046_01BEADB5.679B0110--
.
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Date: Thu, 03 Jun 1999 10:29:44 -0400
From: Jim Williams <jlw@odi.com>
Organization: Object Design, 25 Mall Rd, Burlington, MA 01803 - 617-674-5355
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Michael Sondow wrote:
....
> 
> 3. If it is decided to allocate domain names within the same
> subdivisions - geographical or otherwise - of .US for commercial
> purposes, the creation of a nomenclature specific to individual and
> non-commercial domain name use, so that the problems that have
> occurred in the gTLDs, and the prejudice to non-commercial and
> individual users that those problems has entailed, will not be
> repeated.
> 
....
I think it should be the non-individual commercial domain
name use which requires a special nomenclature.  That is to
say: all presumptions should be in favor of real persons
first, non-profit use second, and for-profit use last.
This would also clarify the question of individual
commercial use of domain names intended for individuals,
as it would then be clear that the criterion is individual
use and that the question of commercial use is irrelevant.
Jim.
.
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Date: Thu, 03 Jun 1999 10:35:31 -0400
From: Jim Williams <jlw@odi.com>
Organization: Object Design, 25 Mall Rd, Burlington, MA 01803 - 617-674-5355
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To: ".US reorg. list" <us-list@ntiant1.ntia.doc.gov>
Subject: Re: ICIIU proposals for the public sector use of .US
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I find your criteria for valuing the worth of an organization
downright repugnant.
Jim.
John B. Reynolds wrote:
> 
> As I stated earlier today in another discussion, I see no reason to provide
> taxpayer-funded domains to anyone.  For individuals, they're an inexpensive
> luxury item.  Community organizations and other non-profits may have more of
> a need for them, but not to the extent that it justifies public subsidies.
> Besides, any group that can't raise $25-50/year for a domain name and
> $20/month to operate it isn't likely to be a very effective organization.
> 
> Michael Sondow wrote:
> >
> > The following comment regarding the reorganization of the .US domain
> > space has been submitted to the NTIA, and is offered here for public
> > comment.
> >
> >
> > U.S. Department of Commerce
> > NTIA/OIA Room 4701
> > 14th and Constitution Avenue NW
> > Washington DC 20230
> >
> > To whom it may concern;
> >
> > The ICIIU has previously submitted comments to the NTIA on the
> > reorganization of the .US domain space and, although we were unable
> > to participate in the March 9th meeting in Washington, the ICIIU, as
> > a vehicle for the expression of independent Internet users and the
> > public sector, remains actively committed to a .US space organized
> > with these interests in mind. In that spirit, the ICIIU offers for
> > consideration the following principles, which we believe would form
> > a reasonable basis for organization and allocation of domain names
> > within .US:
> >
> > 1. The creation, promoted by the U.S. Government, of a network of
> > non-profit connectivity providers belonging to the public sector,
> > organized by state in the 50 states of the U.S. Such public sector
> > ISPs would be allocated blocks of IP addresses and perform the task
> > of registering domain names for individuals and non-commercial
> > entities so that commercial ISPs, whose financial requirements may
> > not permit them to function properly as public sector registrars,
> > will not be burdened by this work and perform it inefficiently.
> >
> > 2. The promotion by such state registrars of state-wide networks of
> > public sector non-profit sub-registrars for the registration of
> > regional and city subdomains, for the specific purpose of creating
> > community networks. The Federal Government, in collaboration with
> > the state governments, would create funding and organizational
> > mechanisms, and provide information and assistance to local
> > communities, for these community networks on a state-wide and
> > national scale.
> >
> > 3. If it is decided to allocate domain names within the same
> > subdivisions - geographical or otherwise - of .US for commercial
> > purposes, the creation of a nomenclature specific to individual and
> > non-commercial domain name use, so that the problems that have
> > occurred in the gTLDs, and the prejudice to non-commercial and
> > individual users that those problems has entailed, will not be
> > repeated.
> >
> > 4. The publication and distribution, by the state and national
> > registration entites, of detailed lists and diagrams of the
> > non-profit and community network domain names in use. This
> > information will promote the inter-relatedness and interconnectivity
> > of the public sector and community network registrants, and benefit
> > their development and that of the public sector use of .US in
> > general.
> >
> > 5. The creation of a web-based registration template procedure,
> > conformed for all States, so that individual and non-commercial
> > registrants will have control over their domain names, and so that
> > the public sector registrants will not be unduly burdened by the
> > day-to-day handling of names and addresses and can devote their
> > resources to technical improvements and the production of
> > educational and informational materials.
> >
> >
> > Yours,
> >
> > Michael Sondow (for the ICIIU)
> >
> > ============================================================
> >  "We need to be able to judge which is more important - the
> >  images on the screen, the mechanisms that produce them, or
> >  the world that they are striving to represent."
> >
> >             --Oscar Kenshur, in 'The Allure of the Hybrid'
> > ============================================================
> > International Congress of Independent Internet Users (ICIIU)
> >         http://www.iciiu.org       iciiu@iciiu.org
> > ============================================================
> >
.
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Reply-To: <russ@moon.jic.com>
From: "Russ Smith" <russ@moon.jic.com>
To: <us-list@ntiant1.ntia.doc.gov>
Subject: RE: Enhancement of the .us domain space
Date: Thu, 3 Jun 1999 11:44:50 -0400
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I suggest viewing the RealVideo of the WIPO rep at the Berlin meeting.
Rather than providing a balanced discussion of the issues the WIPO rep.
provided a large amount of rhetoric about domain "abuse" and implied that
simply registering a domain was trademark infringement.  I am no expert on
these matters but I know enough that the mark must be used in commerce in
order for such an infringement to take place under US law.  On top of that
the presenter was extremely arrogant to those that pointed out the flaws in
their report.
As a result I believe it is prudent to proceed with extreme caution when
reviewing WIPO proposals.
Russ Smith
http://consumer.net
http://domainia.org
.
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Message-ID: <37563944.C8D85168@ix.netcom.com>
Date: Thu, 03 Jun 1999 09:13:58 +0100
From: Jeff Williams <jwkckid1@ix.netcom.com>
Organization: INEG. Inc.
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Russ and all,
  I agree completely and this was discussed in Berlin and before the
Berlin meeting many organizations, individuals and companies
suggested to the ICANN that it not adopt the WIPO RFC-3 "Final
Report" Recommendations, but rather allow the DNSO and/or the
ICANN Membership (Yet to be formed) review the WIPO RFC-3
"Final Report" Recommendations before adopting it in total or
any of it's provisions.  The ICANN Interim Board declined.
Russ Smith wrote:
> I suggest viewing the RealVideo of the WIPO rep at the Berlin meeting.
> Rather than providing a balanced discussion of the issues the WIPO rep.
> provided a large amount of rhetoric about domain "abuse" and implied that
> simply registering a domain was trademark infringement.  I am no expert on
> these matters but I know enough that the mark must be used in commerce in
> order for such an infringement to take place under US law.  On top of that
> the presenter was extremely arrogant to those that pointed out the flaws in
> their report.
>
> As a result I believe it is prudent to proceed with extreme caution when
> reviewing WIPO proposals.
>
> Russ Smith
> http://consumer.net
> http://domainia.org
Regards,
--
Jeffrey A. Williams
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-447-1894
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208
.
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Reply-To: <domainiac@home.com>
From: "domainiac" <domainiac@home.com>
To: <us-list@ntiant1.ntia.doc.gov>
Subject: RE: Enhancement of the .us domain space
Date: Thu, 3 Jun 1999 12:14:45 -0400
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....... rather allow the DNSO and/or the
ICANN Membership (Yet to be formed) review the WIPO RFC-3
"Final Report" Recommendations before adopting it in total or
any of it's provisions.  The ICANN Interim Board declined.
---
It turns out that I cannot participate via the DNSO either.  This is an
excerpt of the message I received when I tried to participate in the DNSO
for trademarks.  I have several hundred domains and I get about one bogus
threat a week of people trying to trademarks as an excuse to take my domains
away.
I have tried to contact ICANN to find this proposal that was adopted but, as
usual, they won't respond.  The proposal that I could find indicates any
interested entity could participate.  Since I can't participate I will
simply look for ways to litigate.
Russ Smith
http://consumer.net
http://domainia.org
---
"...You should know that ICANN accepted a proposal for the IP
constituency from INTA, FICPI and a handful of other organizations. The
proposal that was adopted does not allow unaffiliated individuals to
participate. If you are a member of one of the trade groups that was
officially recognized, perhaps you can participate through them. Details
should be available on the ICANN web site."
.
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Message-ID: <37563F0C.D24C2130@ix.netcom.com>
Date: Thu, 03 Jun 1999 09:38:38 +0100
From: Jeff Williams <jwkckid1@ix.netcom.com>
Organization: INEG. Inc.
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To: domainiac@home.com
CC: us-list@ntiant1.ntia.doc.gov
Subject: Re: Enhancement of the .us domain space
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Russ and all,
  It is pretty broadly known or accepted that the ICANN Interim Board
is about as open as FT. Knox or a vestal virgin with a cypher lock
chastity belt on.  >;)
  At any rate, yes aI am very well aware of the events pertaining with the
ICANN and the Berlin conference.  We [INEGroup] for which I am
spokesman, have been active participants from the beginning...
domainiac wrote:
> ...... rather allow the DNSO and/or the
> ICANN Membership (Yet to be formed) review the WIPO RFC-3
> "Final Report" Recommendations before adopting it in total or
> any of it's provisions.  The ICANN Interim Board declined.
> ---
>
> It turns out that I cannot participate via the DNSO either.  This is an
> excerpt of the message I received when I tried to participate in the DNSO
> for trademarks.  I have several hundred domains and I get about one bogus
> threat a week of people trying to trademarks as an excuse to take my domains
> away.
>
> I have tried to contact ICANN to find this proposal that was adopted but, as
> usual, they won't respond.  The proposal that I could find indicates any
> interested entity could participate.  Since I can't participate I will
> simply look for ways to litigate.
>
> Russ Smith
> http://consumer.net
> http://domainia.org
> ---
>
> "...You should know that ICANN accepted a proposal for the IP
> constituency from INTA, FICPI and a handful of other organizations. The
> proposal that was adopted does not allow unaffiliated individuals to
> participate. If you are a member of one of the trade groups that was
> officially recognized, perhaps you can participate through them. Details
> should be available on the ICANN web site."
Regards,
--
Jeffrey A. Williams
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-447-1894
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208
.
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Reply-To: <domainiac@home.com>
From: "domainiac" <domainiac@home.com>
To: <us-list@ntiant1.ntia.doc.gov>
Subject: .us - various issues
Date: Thu, 3 Jun 1999 17:29:40 -0400
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I would like to respond to several issues revolving around the .us system
brought up on this list an the DC meeting a couple months ago.
-This mailing list.  I attended the meeting but I didn't get any sort
notification about this list.  I happened to see it because I check the NTIA
site regularly but as far as I know there has been no notification of the
meeting participants (other than the federal register notice which, of
course, almost nobody reads).  I posted a few notices in newsgroups.  This
list is being maintained by NTIA at www.ntia.doc.gov.  NTIA is a small group
within the Dept. of Commerce and they deal with telecommunications policy
issues such as spectrum management, Internet commerce and privacy, and the
domain name system.  As far as I can tell they have no technical expertise
and are made up of lawyers and policy people.
-My background with .us.  I have registered a few .us domain
(alcatraz.san-francisco.ca.us, santa.north-pole.ak.us,
consumer.washington,dc.us, and times-square.new-york.ny.us).  I have found
that trying to register .us domains to be very problematic.  Some of the
domains are administered by ISI and others have been delegated to others who
have requested to be registrars for certain cities.  Many of the domain
records (such as nameservers for delegated domains) are years out of date.
There is also no clear set of rules (note the notation at ISI's web site
that claims the web page postings supercede the RFC's!).
The registration of .us is very haphazard.  When registering via ISI you
immediately get a response.  it says not to bother contacting them for at
least 4 weeks.  I waited the 4 weeks then I had to make at least 5 calls
over the next 2 or 3 weeks just to get a domain registered.  Total time was
almost 2 months.  Any business who needed a domain would have given up long
before that and gone to .com.
I also dealt with some of the delegated registrars.  Some were free.
However, one registrar who was doing it for free took this as a license to
set his own rules.  He refused to register some domains I requested, accused
me of "domain abuse," and said he would not administer the domain any more
if ISI actually enforced the rules.  I contacted ISI and they won't respond
at all.  The domains are still there, completely unused.  Other delegated
registrars do not give any information about .us registration at their web
site.  One sent me a bill only after I completed a registration (which I
thought was free).
-commercial use.  I think the people complaining about commercial use of the
..us domains (or sending commercial messages to this list) are misguided.  If
there is not a commercial use of the .us it will never amount to much.  The
fact is that operating a domain system costs time and money and none of the
complainers seem to be willing to put up their funds.  I would much rather
pay a small fee than deal with some delegated volunteer hostmaster who has a
distorted view of the world.  Those that think there are all these
volunteers willing to do the work, supply the equipment, and coordinate
their efforts are dreaming.
I would not object for preserving parts of the .US for non-commercial use
(even subsidized).  However, once you get into these classifications it
costs time and money to administer such a plan and verify who is commercial,
etc.  Also, this distinction is often impossible to make.  The whole idea is
to generate commercial use of the space, not stop it.  I would like to see
more ideas on commercial use (and yes, that includes a business plan to pay
the bills and plan for scalability if it should grow).  Calling the
registrars who are charging a reasonable fee "greedy" is also not valid.
You get what you pay for.
-New proposals.  The thing that strikes me the most about the proposals
about the site is that most want to somehow link the plan to something Jon
Postel said or did.  The fact is that most people do not know or care what
Jon Postel said or did.  The idea is to develop a workable system, not have
a memorial for Jon Postel.  Maybe Dr. Postel did and said many good things
but that was another time and place.  However, he had a major hand in
setting up the ICANN disaster.  the ISI reps. at the Washington meeting
actually announce themselves by saying how many years they worked with
Postel.  It is time to move on.
-leaving the system with ISI.  for the reasons stated above and based on the
presentation they gave at the DC meeting I would support moving the system
completely away from ISI.  their discussions at the meeting was about
stopping people from "grabbing" names and other forms of what they call
"abuse."  The whole idea is to get people to use the domains, not prevent
people from using the system.  ISI also indicated their budget was only $10K
(I assume this doesn't cover salaries) which is not anywhere near adequate.
Of course who would fund something almost nobody wants to use.  A
coordinated, funded system is needed that is promoted and used.  right now
there is not even a coordinated WHOIS for the 3rd level domains being
registered.
-Multiple uses:  Nothing prevents multiple uses of the .us system.  For
instance, the Postal Service could run the xxx.city.state.us portion while
others could still manage xxx.us and/or xxx.state.us.  There is no technical
limitation whatsoever to run these parallel system.  As for the post office
wanting the system all I have to say is that at least somebody wants it.
The Postal service probably should bid in a competitive procurement since
they are competing with other commercial entities but I expect there would
not be any other qualified bidders if this was procured competitively.
-Big companies using xxxx.us.  At the DC meeting some tried to push getting
big businesses to use .us.  one example was a  hotel chain that could use
hotelname.washington.dc.us, etc.  I think this is barking up the wrong tree.
The big companies, for the most part, already have the .com name which can
be divided into city.state.name.com if they want.  the fact is they would
rather have people go to xxxx.com and then click to find the specific city.
Why would they waste time and effort registering all different domains in
different cities?  It is the small business that would find uses, not large
corporations.  Bank of America already has Alcatraz.com so when I went to
set up my Alcatraz site I was able to get alcatraz.san-francisco.ca.us.
This is much too long to type but it works well with the search engines.  I
think promoting this domain space should be focused on small, local
businesses and personal/family use.
-elimination of .com, .net, and .org in favor of .us -  Why waste time
discussing this since it will never happen?
Russ smith
http://consumer.net
http://domainia.org
.
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Date: Thu, 03 Jun 1999 15:32:37 +0100
From: Jeff Williams <jwkckid1@ix.netcom.com>
Organization: INEG. Inc.
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Subject: Re: .us - various issues
References: <007a01beae08$2ff6afe0$51540518@CJ52269-A.alex1.va.home.com>
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Russ and all,
  I thought I would share your experiences regarding the .US as it relates
to ISI's management of it, with some other lists as I have also experienced
similar experiences with ISI and also the IANA and now ICANN as well...
domainiac wrote:
> I would like to respond to several issues revolving around the .us system
> brought up on this list an the DC meeting a couple months ago.
>
> -This mailing list.  I attended the meeting but I didn't get any sort
> notification about this list.  I happened to see it because I check the NTIA
> site regularly but as far as I know there has been no notification of the
> meeting participants (other than the federal register notice which, of
> course, almost nobody reads).  I posted a few notices in newsgroups.  This
> list is being maintained by NTIA at www.ntia.doc.gov.  NTIA is a small group
> within the Dept. of Commerce and they deal with telecommunications policy
> issues such as spectrum management, Internet commerce and privacy, and the
> domain name system.  As far as I can tell they have no technical expertise
> and are made up of lawyers and policy people.
>
> -My background with .us.  I have registered a few .us domain
> (alcatraz.san-francisco.ca.us, santa.north-pole.ak.us,
> consumer.washington,dc.us, and times-square.new-york.ny.us).  I have found
> that trying to register .us domains to be very problematic.  Some of the
> domains are administered by ISI and others have been delegated to others who
> have requested to be registrars for certain cities.  Many of the domain
> records (such as nameservers for delegated domains) are years out of date.
> There is also no clear set of rules (note the notation at ISI's web site
> that claims the web page postings supercede the RFC's!).
>
> The registration of .us is very haphazard.  When registering via ISI you
> immediately get a response.  it says not to bother contacting them for at
> least 4 weeks.  I waited the 4 weeks then I had to make at least 5 calls
> over the next 2 or 3 weeks just to get a domain registered.  Total time was
> almost 2 months.  Any business who needed a domain would have given up long
> before that and gone to .com.
>
> I also dealt with some of the delegated registrars.  Some were free.
> However, one registrar who was doing it for free took this as a license to
> set his own rules.  He refused to register some domains I requested, accused
> me of "domain abuse," and said he would not administer the domain any more
> if ISI actually enforced the rules.  I contacted ISI and they won't respond
> at all.  The domains are still there, completely unused.  Other delegated
> registrars do not give any information about .us registration at their web
> site.  One sent me a bill only after I completed a registration (which I
> thought was free).
>
> -commercial use.  I think the people complaining about commercial use of the
> .us domains (or sending commercial messages to this list) are misguided.  If
> there is not a commercial use of the .us it will never amount to much.  The
> fact is that operating a domain system costs time and money and none of the
> complainers seem to be willing to put up their funds.  I would much rather
> pay a small fee than deal with some delegated volunteer hostmaster who has a
> distorted view of the world.  Those that think there are all these
> volunteers willing to do the work, supply the equipment, and coordinate
> their efforts are dreaming.
>
> I would not object for preserving parts of the .US for non-commercial use
> (even subsidized).  However, once you get into these classifications it
> costs time and money to administer such a plan and verify who is commercial,
> etc.  Also, this distinction is often impossible to make.  The whole idea is
> to generate commercial use of the space, not stop it.  I would like to see
> more ideas on commercial use (and yes, that includes a business plan to pay
> the bills and plan for scalability if it should grow).  Calling the
> registrars who are charging a reasonable fee "greedy" is also not valid.
> You get what you pay for.
>
> -New proposals.  The thing that strikes me the most about the proposals
> about the site is that most want to somehow link the plan to something Jon
> Postel said or did.  The fact is that most people do not know or care what
> Jon Postel said or did.  The idea is to develop a workable system, not have
> a memorial for Jon Postel.  Maybe Dr. Postel did and said many good things
> but that was another time and place.  However, he had a major hand in
> setting up the ICANN disaster.  the ISI reps. at the Washington meeting
> actually announce themselves by saying how many years they worked with
> Postel.  It is time to move on.
>
> -leaving the system with ISI.  for the reasons stated above and based on the
> presentation they gave at the DC meeting I would support moving the system
> completely away from ISI.  their discussions at the meeting was about
> stopping people from "grabbing" names and other forms of what they call
> "abuse."  The whole idea is to get people to use the domains, not prevent
> people from using the system.  ISI also indicated their budget was only $10K
> (I assume this doesn't cover salaries) which is not anywhere near adequate.
> Of course who would fund something almost nobody wants to use.  A
> coordinated, funded system is needed that is promoted and used.  right now
> there is not even a coordinated WHOIS for the 3rd level domains being
> registered.
>
> -Multiple uses:  Nothing prevents multiple uses of the .us system.  For
> instance, the Postal Service could run the xxx.city.state.us portion while
> others could still manage xxx.us and/or xxx.state.us.  There is no technical
> limitation whatsoever to run these parallel system.  As for the post office
> wanting the system all I have to say is that at least somebody wants it.
> The Postal service probably should bid in a competitive procurement since
> they are competing with other commercial entities but I expect there would
> not be any other qualified bidders if this was procured competitively.
>
> -Big companies using xxxx.us.  At the DC meeting some tried to push getting
> big businesses to use .us.  one example was a  hotel chain that could use
> hotelname.washington.dc.us, etc.  I think this is barking up the wrong tree.
> The big companies, for the most part, already have the .com name which can
> be divided into city.state.name.com if they want.  the fact is they would
> rather have people go to xxxx.com and then click to find the specific city.
> Why would they waste time and effort registering all different domains in
> different cities?  It is the small business that would find uses, not large
> corporations.  Bank of America already has Alcatraz.com so when I went to
> set up my Alcatraz site I was able to get alcatraz.san-francisco.ca.us.
> This is much too long to type but it works well with the search engines.  I
> think promoting this domain space should be focused on small, local
> businesses and personal/family use.
>
> -elimination of .com, .net, and .org in favor of .us -  Why waste time
> discussing this since it will never happen?
>
> Russ smith
> http://consumer.net
> http://domainia.org
Regards,
--
Jeffrey A. Williams
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-447-1894
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208
.
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From: "Allan Bennett" <abennett@isomedia.com>
To: <us-list@ntiant1.ntia.doc.gov>
Subject: RE: ICIIU proposals for the public sector use of .US
Date: Thu, 3 Jun 1999 15:36:51 -0700
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John did not say the value of a organization is how much they collect. Only
that, which I agree, how affective is an organization where no one is
willing to contribute money, to pay for a domain? When as per early threads
we learned a domain name will be more important than air to breath or water
to drink. <grin>
Allan
-----Original Message-----
From: Jim Williams [mailto:jlw@odi.com]
Sent: Thursday, June 03, 1999 7:36 AM
To: .US reorg. list
Subject: Re: ICIIU proposals for the public sector use of .US
I find your criteria for valuing the worth of an organization
downright repugnant.
Jim.
John B. Reynolds wrote:
>
> As I stated earlier today in another discussion, I see no reason to
provide
> taxpayer-funded domains to anyone.  For individuals, they're an
inexpensive
> luxury item.  Community organizations and other non-profits may have more
of
> a need for them, but not to the extent that it justifies public subsidies.
> Besides, any group that can't raise $25-50/year for a domain name and
> $20/month to operate it isn't likely to be a very effective organization.
>
> Michael Sondow wrote:
> >
> > The following comment regarding the reorganization of the .US domain
> > space has been submitted to the NTIA, and is offered here for public
> > comment.
> >
> >
> > U.S. Department of Commerce
> > NTIA/OIA Room 4701
> > 14th and Constitution Avenue NW
> > Washington DC 20230
> >
> > To whom it may concern;
> >
> > The ICIIU has previously submitted comments to the NTIA on the
> > reorganization of the .US domain space and, although we were unable
> > to participate in the March 9th meeting in Washington, the ICIIU, as
> > a vehicle for the expression of independent Internet users and the
> > public sector, remains actively committed to a .US space organized
> > with these interests in mind. In that spirit, the ICIIU offers for
> > consideration the following principles, which we believe would form
> > a reasonable basis for organization and allocation of domain names
> > within .US:
> >
> > 1. The creation, promoted by the U.S. Government, of a network of
> > non-profit connectivity providers belonging to the public sector,
> > organized by state in the 50 states of the U.S. Such public sector
> > ISPs would be allocated blocks of IP addresses and perform the task
> > of registering domain names for individuals and non-commercial
> > entities so that commercial ISPs, whose financial requirements may
> > not permit them to function properly as public sector registrars,
> > will not be burdened by this work and perform it inefficiently.
> >
> > 2. The promotion by such state registrars of state-wide networks of
> > public sector non-profit sub-registrars for the registration of
> > regional and city subdomains, for the specific purpose of creating
> > community networks. The Federal Government, in collaboration with
> > the state governments, would create funding and organizational
> > mechanisms, and provide information and assistance to local
> > communities, for these community networks on a state-wide and
> > national scale.
> >
> > 3. If it is decided to allocate domain names within the same
> > subdivisions - geographical or otherwise - of .US for commercial
> > purposes, the creation of a nomenclature specific to individual and
> > non-commercial domain name use, so that the problems that have
> > occurred in the gTLDs, and the prejudice to non-commercial and
> > individual users that those problems has entailed, will not be
> > repeated.
> >
> > 4. The publication and distribution, by the state and national
> > registration entites, of detailed lists and diagrams of the
> > non-profit and community network domain names in use. This
> > information will promote the inter-relatedness and interconnectivity
> > of the public sector and community network registrants, and benefit
> > their development and that of the public sector use of .US in
> > general.
> >
> > 5. The creation of a web-based registration template procedure,
> > conformed for all States, so that individual and non-commercial
> > registrants will have control over their domain names, and so that
> > the public sector registrants will not be unduly burdened by the
> > day-to-day handling of names and addresses and can devote their
> > resources to technical improvements and the production of
> > educational and informational materials.
> >
> >
> > Yours,
> >
> > Michael Sondow (for the ICIIU)
> >
> > ============================================================
> >  "We need to be able to judge which is more important - the
> >  images on the screen, the mechanisms that produce them, or
> >  the world that they are striving to represent."
> >
> >             --Oscar Kenshur, in 'The Allure of the Hybrid'
> > ============================================================
> > International Congress of Independent Internet Users (ICIIU)
> >         http://www.iciiu.org       iciiu@iciiu.org
> > ============================================================
> >
.
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	Thu, 3 Jun 1999 15:37:17 -0700
Message-Id: <199906032237.PAA00484@pell.portland.or.us>
Subject: Re: .us - various issues
To: domainiac@home.com
Date: Thu, 3 Jun 1999 15:37:17 -0700 (PDT)
From: "David Parsons" <orc@pell.portland.or.us>
Cc: us-list@ntiant1.ntia.doc.gov
In-Reply-To: <007a01beae08$2ff6afe0$51540518@CJ52269-A.alex1.va.home.com> from "domainiac" at Jun 3, 99 05:29:40 pm
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domainiac wrote:
> -commercial use.  I think the people complaining about commercial use of the
> .us domains (or sending commercial messages to this list) are misguided.  If
> there is not a commercial use of the .us it will never amount to much.  The
> fact is that operating a domain system costs time and money and none of the
> complainers seem to be willing to put up their funds.
     Time and resources, actually.
     I've not complained much, but I'll put my money where my mouth is;
     I'll certainly volunteer resources to keep the existing .us domain
     tree going, up to and including trying to get people together to
     take over the .us root.
     The problems you mention with .us are because Jon Postel and ISI
     treated it like a problem child and ignore(d) it as much as
     possible.  When there are basically no guidelines (aside from
     Jon's saying that he didn't think that domain registrations
     should be as expensive as N$I's ones, which had an immediate
     chilling effect on the domain server speculators), is it really
     such a surprise that people will act like lone cowboys.
     If the US government spends the trivial amount of time and money
     that it would take to set up a written set of laws on how to
     administer the .us domain, many of the cowboys would become
     respectable citizens because they have regulations to follow.
   -david parsons
.
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Reply-To: <domainiac@home.com>
From: "domainiac" <domainiac@home.com>
To: <us-list@ntiant1.ntia.doc.gov>
Subject: RE: .us - various issues
Date: Thu, 3 Jun 1999 19:34:46 -0400
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     >I've not complained much, but I'll put my money where my mouth is;
     I'll certainly volunteer resources to keep the existing .us domain
     tree going, up to and including trying to get people together to
     take over the .us root.
Actually, there are several very good volunteer efforts that have worked
well on a small scale. In addition, the "cowboys" are usually
well-intentioned.  One ISP at the DC meeting said that, on average, he
spends 3 hours helping .us registrants set up their domains.  Suppose he
starts getting 100 applications a month?  Suppose .us starts getting
thousands of registrations per month?  Can you foot the bill, give your
time, hire staff, etc?  If you really want the system the system to be used
this scaling must be in the plan.  Look at .com now running a contest for #5
million
http://www.networksolutions.com/promotions/landing/US/5MM_jump/5MM_jumpyahoo
..htm
	>chilling effect on the domain server speculators),
As for domain spectators, I am one of those.  To me that is healthy sign.
In domain discussions most people take it as a given that domain speculation
is bad yet I have never heard a logical explanation why that is the case
except where people intentionally buy company names and try to sell it to
them.  Last fall I wanted to register a couple domains for sites I was
setting up.  After missing out on a few names I figured out the trick to get
the domains registered.  I use services that compare the zone files to the
WHOIS database to get a list of domains "on hold" and then I set up
automated registration robots.  Now I am selling and trading them to get
domains I want that are tied by speculators.  When I get a good domain I am
happy as a clam to pay $70.  In some cases I have made deals of several
thousand dollars to sell the domain even before the Internic bill is due.  I
would like to hear of anyone, anywhere who has ever sold a .us domain over
the registration fee.  That will be a sure sign that the system has created
real value where none existed before.
As for speculators, I just bought some domains in a trade/cash deal and I
laid out a big chunk of money and I gave up some good domains.  The
speculator I purchased from is one of the biggest for .com's and he holds
out for high prices.  On the one hand you can say he gouged me.  On the
other hand, he did me a favor.  If he did not hold out for a good price (for
2 years) someone else surely would have bought the domain earlier.  Probably
someone who didn't want the domain as bad as I did.  The .us could give
people a 'second chance' to get a decent domain but speculation of this type
will go hand in hand with the success of any domain system.
Russ Smith
http://consumer.net
http://domainia.org
.
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	Thu, 3 Jun 1999 17:28:14 -0700
Message-Id: <199906040028.RAA05719@pell.portland.or.us>
Subject: Re: .us - various issues
To: domainiac@home.com
Date: Thu, 3 Jun 1999 17:28:14 -0700 (PDT)
From: "David Parsons" <orc@pell.portland.or.us>
Cc: us-list@ntiant1.ntia.doc.gov
In-Reply-To: <008301beae19$a9e81fd0$51540518@CJ52269-A.alex1.va.home.com> from "domainiac" at Jun 3, 99 07:34:46 pm
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domainiac wrote:
> 
> 
>      >I've not complained much, but I'll put my money where my mouth is;
>      I'll certainly volunteer resources to keep the existing .us domain
>      tree going, up to and including trying to get people together to
>      take over the .us root.
> 
> Actually, there are several very good volunteer efforts that have worked
> well on a small scale. In addition, the "cowboys" are usually
> well-intentioned.
     Of course, but it's very difficult to do things properly when
     there are no guidelines and you have to fumble around trying
     to figure it out.
> One ISP at the DC meeting said that, on average, he
> spends 3 hours helping .us registrants set up their domains.  Suppose he
> starts getting 100 applications a month?
     Well, first of all I'd streamline the process;  I can certainly
     imagine that it would take 3 hours if you're doing it all by hand
     (it takes me about 15 minutes to set up a new domain, but I've
     been doing this for a while) but if you built a set of automated
     tools to take registrations and do the necessary sanity checks
     on the new domain you could probably reduce the time to about
     a minute (to confirm a request and send it to a domain 'bot.)
     What are most of the problems with new domains?  If it's a
     case of missing nameservers, that's a good profit center:
     "You need two nameservers to register for a domain in
     the.city.I.administer.us.  If you do not have them, I can
     provide these nameservers for $whatever."  (The actual text
     would be a little more verbose, because a lot of people see
     the word ``nameservers'' and blow a circuit breaker.)
> Suppose .us starts getting
> thousands of registrations per month?  Can you foot the bill, give your
> time, hire staff, etc?
     Well, if the.city.I.administer.us starts getting thousands of
     registrations a month, that would be a fairly powerful incentive
     to set up the automated tools.   In the short term, the registrants
     would just have to deal with the grim reality that if their domain
     wasn't set up properly, they'd end up waiting a long time to get
     it processed.
> 	>chilling effect on the domain server speculators),
> 
> As for domain spectators, I am one of those.  To me that is healthy sign.
> In domain discussions most people take it as a given that domain speculation
> is bad
     I don't see that wanting to make a profit is bad.   But I don't
     think it's a good either.
     The DNS is a public good, and there are people willing to do it for
     free.   Want a domain inside a commercial leasespace?  Well, the
     NSI monopoly will be happy to take your money.  Want a domain in a
     volunteer-run namespace?  Well, unless you use Alternic (dead),
     edns (dead), or an open-rsc (dead?) server, you're stuck with bits
     of .us.   I look at .us as an urban growth boundary; there are
     people who look at the profits that NSI is making from their
     monopoly, and think that if .us was just handed to them THEY could
     make the same sort of money.
     I suspect that if .us was reworked into a NSI-style leasespace
     where pell.portland.or.us was leased to me by NSI.us, it would
     prove to be a colossal flop, because why spend the money to
     buy a .us domain when you can pay a trivial amount more to get
     one of the vanity suffixes?
     But if I ever make up a proposal to set up a .us domain, I'd
     certainly open my database up to commercial speculators, so
     they could value-add whatever handholding they wanted and
     charge what the market may bear.   I think they'd fail, but
     as long as they don't absolutely control the domain there's
     nothing wrong with trying to make a buck.
     -david parsons
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