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ICB Toll Free (800/888) News by: Judith Oppenheimer, Publisher, ICB Toll Free (800/888) News
Wednesday October 27 1999 at 02:39:12 PM EST

DOMAIN NAMES: DIVINE RIGHT, OR FIRST COME FIRST SERVE?

In savvy political fashion, the strategy here is one of semantics: trademark interests claim dire need for . trademark protection," when what they really want is "trademark supremacy," the divine right to any domain name, trademark-related or not.

New York, NY U.S. - In March, 1998, the Federal Communications Commission ruled that trademarks do not have supremacy in toll free vanity numbers, but rather are the jurisdiction of trademark protection and unfair competition laws.

This was after five years of lobbying by trademark interests which included aggressive scapegoating of "brokers and hoarders" parallel to their scapegoating today of "cybersquatters."

In September, 1999, the U.S. Patent and Trademark Office ruled that domain names are not trademarks, angering trademark interests who all along have been considering domain names AS trademarks.

And just a few days ago, the U.S. Court of Appeals for the Ninth Circuit said, "NSI does not supply the domain-name combination."

Potentially strengthening the legal basis for challenging domain name registrars' trademark-prodded demands that "The registrant agrees that [registrar] shall have the right in its sole discretion to revoke a domain name ..."

Yet on October 26 the House of Representatives passed HR 3028, the so-called . Cybersquatting Bill. , by a voice vote.

Civil liberties groups opposed the measure, saying the legislation would infringe on free speech rights and let large corporate trademark holders take away domain names from small businesses and individuals who have legitimate claims to those names.

(800 number theft is familiar to many of you.)

But the backers of the bill proved too powerful a lobby.

The bill came to a vote with no discussion Tuesday, after being introduced only a few weeks ago.

In savvy political fashion, the strategy here is one of semantics. Trademark interests claim dire need for . trademark protection," something readily available under the trademark protection and unfair competition laws.

But it. s not . trademark protection. they really want.

Trademark supremacy is the agenda, a divine right to any domain name, trademark-related or not.

ICB is a toll free consultancy as well as news service. We have many trademark owners as clients, and are vested in protecting and promoting their interests, along with those of our other clients.

But experience shows, reverse hijackers far outnumber squatters.

Our clients include global corporations that buy 800 numbers when they can't obtain them by other means.

But lost and stolen 800 number retrieval is a far more significant part of our business.

We know from many years. experience that big companies have a "divine right" mentality, and a modus operandi to match, to all 800 numbers and to all domain names. "Trademark protection" simply offers the appearance of a legitimate platform.

The overt hostility of trademark interests, their pejorative "cybersquatter" rhetoric, and the dynamics of HR 3028, should raise a huge red flag:

The bill came to a vote with no discussion Tuesday, after being introduced only a few weeks ago. We hear it is being rushed through without a joint Senate/House conference and will probably be law on Friday.

The clause making the provision of false information a basis for prosecution is loose enough to cover people who forget to update information after they change a phone number, etc. (My area code was changed by my phone company last year -- did I notify every place where I used the phone number to register information?)

Yet an individual could pay up to $100,000.00 under this bill.

Another clause allows the court to remove a domain name from someone who could not be contacted and is not under the court's jurisdiction. This is so broad that it may be declared unconstitutional.

We expect commercial interests to use whatever tools necessary to achieve their goals, and in this bill they've been handed a slam dunk, home run, hole-in-one, on a silver platter: a general instrument to fight any domain name registration they don't like.

But we expect our statutory bodies to be more than the enforcement arm of Corporate America.

The U.S. Congress should not be endorsing the trademark lobby's "divine right" to domain names.

Author/Correspondent's Profile: Judith Oppenheimer, Publisher, ICB Toll Free (800/888) News


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