New TLD's at Any Price

or, He Who Controls the DNS(tm), Controls the Internet(tm)

by Judith Oppenheimer

ICANN is reviewing position papers on the issues of (a) protecting trademarks in the domain name space, and (b) introducing new global top level domains. It's no accident that these seemingly unrelated issues are joined at the hip.

According to the resolution adopted in Cairo, Egypt in March, 2000, an interim report on the subject of protecting "Famous Marks" in the domain name space, is due to the Names Counsel of ICANN by the 15th of April. This report is the responsibility of the DNSO's Working Group B. The Names Counsel then has until April 20th to submit a report to the ICANN Board. After the 20th, the ICANN staff will prepare a report for public comment prior to the Japan meeting in July.

The Intellectual Property Constituency (IPC, aka the Trademark Lobby) is the primary "champion" of this issue.

Also according to the resolution adopted in Cairo, Egypt in March, an interim report on the subject of new top level domains - ex.: .web and .union - is due to the Names Counsel of ICANN by the 15th of April. This report is the responsibility of the DNSO's Working Group C. The Names Counsel then has until April 20th to submit a report to the ICANN Board. After the 20th, the ICANN staff will prepare a report for public comment prior to the Japan meeting in July.

The Registrar Constituency is the primary "champion" of this issue. Here's where it gets sticky.

The Chair of Working Group B, not surprisingly a trademark attorney, is perhaps surprisingly, perhaps not, also the Secretariat of the Registrar Constituency.

Having come to no consensus on what a “Famous Mark” is, the Trademark Lobby now wants protection of all trademarks in the domain name space, to be accomplished by a right of first refusal in all top level domains.

The Registrar Constituency wants new top level domains introduced to promote competition, and to have needed inventory for a growing internet citizenry.

And it's common knowledge, at this point, that the Trademark Lobby will not approve introduction of new top level domains, unless its demands for trademark and service mark right of first refusal are met.

Here's where it gets extortionary.

According to the Famous Marks Chair/Registrar Secretariat, "The Trademark Lobby must be placated because of its potential ability and inclination to bankrupt new registrars and wreck havoc on their registrant databases."

The Trademark Lobby will not approve new top level domains, unless its demands are met: right of first refusal in domain names, which is nary a hair's breath away from control of the domain name space (DNS).

And he who controls the DNS, controls the Internet.

"New top level domains" is the battle cry of registrars, small business leaders, and most other constituencies of the Internet. Indeed, it's the logical next step in the Internet’s growth, and it's long overdue.

But "new top level domains at any price" is the offer on the table, and the price is ceding control of the Internet to the Trademark Lobby.

Which is the only reason there is a Working Group B to discuss "Famous Marks" or any trademarks, at all. "There already are mechanisms to enforce trademark rights in cyberspace – the UDRP and the ACPA among them," advises trademark attorney John Berryhill.

In fact, UDRP and ACPA rulings are increasingly granting DNS supremacy to all trademarks: intent-to-use trademarks, those registered years after the "offending" domain name was assigned, and those in unrelated product or service categories, have been accorded affirmative rulings against hapless domain name owners.

"The Trademark Lobby’s proposal is not in accordance with the remedial nature of the Law," says Berryhill. "It asks for prospective, pre-emptive restraints of the kind that we do not permit our own government to exert in the enforcement of criminal law relating to the use of words. Why should private individuals have greater power in the context of potential civil liability? The proposal perverts Law to "Where there is a right, there is a way to prevent people from violating it." That has never been the way Law functions in our society, and it has certainly never been the way the Internet functions. Technical concerns say (a) domain name allocations are to follow RFC1591 - first come, first served and (b) there is a need for a larger name space. The Law says that violations of private rights can be remedied after the fact."

"If it's not "technical administration"," Berryhill muses, "and it's not "law", what is it?"

Control.

The Trademark Lobby's extortionist demand for right of first refusal in domain names leaps way past the line of purported trademark protection, and well into the gleaming new State of Trademark Dominion.

(I seem to have missed the inaugural ball.)

He who control the DNS(tm), controls the Internet(tm).

The Trademark Lobbyist says, "We're protecting the consumer." Very mom and apple pie. And the rationale of every dictatorship.

I say, He who controls the DNS(tm), controls the Internet(tm). And I've no intention of raising my family under a dictatorship, benevolent or otherwise.

Judith Oppenheimer is President of ICB Inc., purveyor of accurate 800 & Dot Com News, Intelligence, Analysis, Consulting. http://icbtollfree.com/, http://1800theexpert.com/

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