WIPO Internet Domain Name Process

Transcripts - part 3: San Francisco regional consultation

Fairchild Auditorium, Stanford University
September 23, 1998

Mr. Neil. Smith (Partner, Limbach & Limbach, LLP):

Good morning and welcome to Silicon Valley. I am an attorney in San Francisco and San Jose, California, specializing in intellectual property issues related to the Internet and domain names. I have been directly involved in several disputes and litigated matters relating to trademarks on the Internet and Internet domain name disputes that have not gone to litigation. I have been on both sides of these issues and I think it is appropriate that I make some specific comments regarding domain name registration procedures of past and future. These comments are my own and don't reflect the views of my clients or my law firm. I would like to commend WIPO on its intensive study of the domain name registration procedure and the well thought-out list of questions and anticipated recommendations for the future. This is an area of greatly changing technology and the application of laws and legal decisions interpreting laws now are being applied to new facts involving new technologies, which is always a challenge. It is extremely difficult to look ahead towards designing a registration procedure which takes advantage of the capabilities and reflects the limits of technology that yet works in the commercial world of brand names and trademarks.

I would like to focus on several of the reasons we have legal and business problems with domain name assignments. I will be providing some background for the discussion here today. The reason we are in this situation in the digital world, is that domain names serve as identical addresses for the location of a web site or e-mail users. So, name assignments and ownerships have become extremely important in locating a desired party. When users of the Internet enter the desired domain name on the Internet they go, and only go, directly to the site with the identical domain name. The Internet system does so without any hesitation or display of any similar names which might provide some additional information regarding the domain name owner, such as the nature of its business, its goods or services or its geographical location. Because we now operate in this digital world and every entity with a recognizable name or trademark wants unobstructed access from the information highway going directly to its own entity's web page. There is no room for error or side trips to the wrong address on the information highway. In the real world, rarely does one encounter such a direct access path when one is dealing with a name. In the story, the person following a car on a rainy, foggy night, ends up in the garage of the wrong party because she couldn't see all the signs. Rarely does this happen in the trademark world. In the real world we have a lot of identifiers that help us distinguish between businesses. To use the example talked about earlier, if you see United Airlines, you see United's colors, etc., you know its an airline. If you see it on a van line, you know it's United Van Lines. If you see it on a truck delivering parcels, you know it's United Parcel Service, if you see it on a banana you know its United Fruit. Those signs have been developed in order to avoid confusion. The trademark laws have developed a model for determining liability where people who are trying to find one business or service, or trying to find one manufacturer's goods are mistakenly sent to the wrong business or to the wrong place - the law in many countries call it infringement, and liability can ensue. Then, the law allows the first user of the similar name or trademark to enjoin or stop the other users' use. The trademark laws have developed several tests which can act as signposts, which will help prevent this confusion or this likelihood of confusion, whereby people end up in the wrong location with the wrong goods or the wrong services in the real world. As I said, on the information highway there are no visible signs to point to differences between goods, differences between the geographical areas of the countries, differences between the products or the services and the different channels of trade which help steer consumers in the right direction to avoid ending up in the driveway of the unintended competitor on that dark and foggy night. We need more road signs on the information highway to decrease the significance of having a domain name identical to one's trademark, product or business name, and to help lead consumers to their intended destination on the information highway. Thus, it is important that along with the adoption of additional top-level domain names there must be provided more information about the domain name holders, to help avoid confusion and lessen the importance of the second level domain names as identifying the holders. The more information that we can provide in the domain names at the country code level, regarding the business, the less the likely that confusion will take place and the less importance will be attributed to having identical second level domain names on the Internet.

Thus, I refer to the provision of more information in the upper level domain names or second level domain names regarding the business of the domain name owners, and the use of country information relating to the principle place of business, as part of the Internet address. The more information you can put in there, the less likely there will be this confusion with people ending up in the wrong place when seeking identical domain names.

Secondly, I recommend the adoption of a user-friendly directory which apply to the entire operation of Internet domain names. If, upon entering a desired domain name which may have trademark significance in more than one industry or business, trademark classification, geographical areas within a country or within the world, a user-friendly directory appeared providing good information about the various domain name owners, then much of the confusion and concern about drivers on the information highway being detoured to an unintended location would be eliminated. If, for example one put in a name which was similar to the names assigned to others, the directory could provide a display such as a limited search engine with descriptions of the businesses and their various names and logos. And then a simple click could get one to the right location. The availability of these gateways or link pages as directories would help lessen the demand for more and more top-level domain names as a means of preventing the depletion of commercially useful domain names. Since many entities could then share the same or very similar domain names, there will be less likelihood of a paucity of good commercial names being available. The use of directories to link pages or gateways would, by the way, bring Internet domain name policy more in line with international trademark laws, which permit many users in different industries or in different countries to use identical trademarks. I hope this information is helpful - keep up the good work, you have a daunting task ahead. Thank you.

Mr..................?

The issue has earlier been raised a number of times about who was going to come up first in this directory or linking process. The Internet has the answer to that, it is called the random number generator, which ensures that the listing order is different every time. So, that may avoid some of the fights to be at the top.

Mr.Ole Jacobsen:

I like the idea of a directory to find your way around. I am not at all sure that adding more top-level domains is going to in any way alleviate the problem you are describing, because its not at all clear at the moment what the top-level domains mean and adding a new .firm or .nom or whatever it is not at all intuitive. So, I am not sure if that is the right solution. Nor, am I sure that using country codes is necessarily the right solution, although I did advocate that back in 1984 when it was suggested that perhaps we should organize the world into country codes because it was something that people were used to. It was quickly pointed out to me that the Internet is a non-geographic entity, so that system will not work in many cases. I think the solution would in fact be a good directory service and that it is just the question of finding the right one. Thank you.

Mr. Neil Smith:

What I was really advocating was not necessarily more names, but more useful names in that context, with more information being available in the domain name itself. Because it is like the telephone directory, where if you look at airlines, you will see brand lines and you will know the difference between United and others, and so the more information there the better.

Mr. Jacobsen:

Yes, I agree. I am just saying I don't think it is possible to embed that information in the current domain names, because the top-level domains are simply not of that nature. Now, we have an installed base to worry about unfortunately. And I don't like www.one name.com either. But unfortunately this is where we are.

Ms Laina Greene:

I just want to ask a further question with respect to the directory service and the prevention of disputes issues, and the earlier discussion we had about people having a legitimate interest also having domain names. I would like to hear your views on the area of well-known and famous marks in this particular area. Do you think that prevention of disputes through the use of directory services would actually handle some of those problems?

Mr. Neil Smith:

Well, there are a lot of different ways you address this with respect to gateways or index information that would pop up first to give users more information. It would seem that you could have classification of information. There are certainly legitimate users of trademarks that aren't cybersquatters and that have the right to use a domain name, not because they are trying to take somebody's trademark but because they have the genuine right to use the name. You could have various classifications. You could have trademark identifications, you could use a definition, I mean, you get a license from one of the dictionaries and you provide a definition of the term which might provide some, and you could have different classifications. With respect to the use of trademarks, it seems to me that, whether we like it or not, we are not going to change the world's trademark laws and establish a national register and identification of famous marks. It seems to me that maybe you defer to the trademark register in various countries and you give a list of the trademarks registered in the specific countries and list where they are registered. If people have a beef with that they can go to the country and cancel the trademark. Our international laws, the Paris Convention and others, provide some protection for famous marks, such that they can be used as evidence in other countries in order to cancel trademarks or provide the rights to register the trademarks. To establish an international register is very difficult because what is famous is very much in the eye of the beholder. A mark may be famous internationally, or famous in a particular geographical area, or famous in a narrow area of product, for example, a mark may be famous in the medical field but have no significance outside that.

Mr. Chris Gibson:

I would like to refer back to the beginning of your presentation, where you mentioned that you had some experience in some domain name disputes. Can you talk just for a moment about your approach to those disputes and what you perceived the problems to be?

Mr. Neil Smith:

There are a couple of different issues with respect to that. In the U.S. we have - in addition to the law relating to likelihood of confusion, whereby you have a right in a trademark to prevent others from using a trademark which may be likely to cause confusion -we also have trademark dilution protection. So, in that way you can protect the distinctiveness of a famous mark. I may mention a case in which I was involved, concerning a company called Toys-R-Us, an internationally known toy company. We had difficulty with a web site located in San Francisco selling adult toys, euphemistically called "adult toys", using the name Adults-R-Us. Obviously Toys-R-Us, which owns Toys-R-Us, Kids-R-Us, Babies-R-Us, but not Adults-R-Us, was concerned about the image of that use and the association which children might pick up with respect to these devices directed to an adult market. In that case, we sought a preliminary injunction to stop the use of the domain name. We offered the court trademark dilution arguments for protecting the famous mark because of the tarnishment of being associated with these activities when we directed our market to kids, and also the likelihood of confusion theory, because toys are toys whether they be for adults or children. The court, in granting a preliminary injunction, adopted the dilution of trademark theory and protected the goodwill and fame of the domain name. This case was a little unusual in the sense that Toys-R-Us did not actually have Adults-R-Us as one of its trademarks, instead it had a family of "R-Us" trademarks that the court protected on that basis. I also should mention the excellent procedure and cooperation we received from Network Solutions in that situation. They have an excellent procedure for when you have a court dispute, whereby they defer to that court dispute so that you don't have to sue Network Solutions, you just advise them of the pendency of the law suit and they deposit control of the domain name with the court so that the court can dispose of it in the litigation, which really removes Network Solutions from the litigation business.

Ms. Laina Greene:

Do you think that if the web site was not selling toys and, assuming that particular company had a legitimate interest in the name Adult-R-Us, do you think the case may have been decided differently?

Mr. Neil Smith:

Certainly, it was an easier case because of the bad will, the so-called tarnishment by selling these adult toys to children. But I think that by applying the concept of dilution in protecting a famous mark, the court may have well have reached the same result. There are other strong cases protecting famous trademarks, at least in the United States, like Toys-R-Us, which is a very unusual distinctive mark using the 'R' instead of the 'are', which creates some identification, some distinctiveness. Bad grammar though it may be, it provides in the trademark sense a strong protection.

To answer Mr. Gibson's question further, I have been involved in cases in the northern district of California which have involved attempts to use trademarks to fool search engines, and I think this is an area where you may see attempts being made to do that. One such case involving the Playboy trademark, whereby an individual in northern California had a web site and was using the Playboy trademark in hidden code, or "metatags", in order to fool the search engines that prioritize placement on the search engine's directory based upon the amount of use of the trademarks, although some search engines are catching on to this and may be able to negate that effect. This individual was using metatags, which are hidden codes placed in HTML code via web programming, in order to be picked up by search engines, although the customer, the viewer, the user, doesn't see them. Metatags have legitimate uses for classification of material. But they were printing out the Playboy trademark repeatedly in black letters on a black background, so, while the user was looking at the pictures of the girls on this black background, what the search engines would pick up would be 2,000 uses of Playboy and Playboy magazine repeatedly, and this site would come up very high in the search engine's results. So, I think that the use of trademarks in order to trick search engines and produce displacement of results is something we have to be wary of. In that case, the court granted a preliminary injunction against those activities because it recognized that the trademark was being used to attract customers or potential customers and bring them in to that web site. The analogy I often give in that case is, of somebody driving along the real highway who sees a big Chevron sign for gasoline, and who needs gas and pulls off the highway, but when he gets out the sign says Chevron, but it is another brand, a brand X for gasoline. As he pulled off the highway, so the search engines pull you off the information highway to that site, even though when you see it you may realize that it is no longer a Chevron station. Nevertheless, you have been pulled off and detoured by the use of that trademark and the law should protect against that.

Mr. Fred Mostert:

To pick up on that point, I believe Professor McCarthy refers to this as "initial interest confusion", when metatags are used in the HTML to lure people away from the original site. Those forms of infringement include, for instance, stealth web sites, like the patent switch situation, where you have whitehouse.com instead of whitehouse.gov, and if you went to whitehouse.com you would find a sexually explicit web site. These issues are certainly of great concern in this area of trademark law and domain names, but they are not something specifically included in the study that we are looking at, which is looking at cyberpiracy.

Mr. Neil Smith:

It is a problem to be sure and it may be that those matters have to be dealt with by local law. I always have had difficulty with censorship and the application of it. For example, if you apply in California for a vanity license plate, a personalized license plate that has seven letters on it, and they look in a book of forbidden terms and don't allow certain words to be used. How do you judge what should not be used? It is difficult to make that decision. However, it is a major problem for certain trademark owners to do that. One group I have dealt with in southern California have several hundred domain names which are misspellings of famous trademarks, including Toys'R Us and trademark @.com with a zero instead of an O, which is a common mistake kids make and that again takes them to a pornographic site. Taking advantage of such misspellings is a problem, and it may be that you have to look at clearing the desk with respect to those misspellings. In the regular toy telephone area we have had some cases dealing with that. But it is a difficult area to deal with certainly.

Ms. Carol Smith:

This goes to Neil's comment, as well as talking about how search engines are trying to help in stopping what we call "spam", which operates by redirecting URLs or deliberately using misspellings of famous marks and thereby directing the user to an adult site, or by using black-on-black web sites, where we know that if you double click on the centre you will get the adult images behind it. We deal with that by using our rules of service, such that, if you want to be listed on our search engine, then you have to abide by the commercial terms of service and agree not to infringe third party rights. You won't infringe other people's trademarks and you won't intentionally break the laws. In some sense, we are preempting the courts by having a commercial term of service stating that by agreeing to list your domain name or your URL or your web site on our service you agree to abide by the terms of service. And so when users write to us by e-mail and say, "you know I was searching the Internet with my son and we were trying to find out information about the Whitehouse and we accidentally typed in whitehouse.com or whitehouse.net instead of whitehouse.gov and this came up, can't you do something about this?" Well we do. What we do is we go into the registration that the Internet provides under whois, and if we can find who registered the incorrect spelling or the domain name or the DNS information, then we can track down that registered user on our search engine and block it. We block the DNS, we block the URL, and we send them a notification they have violated our commercial terms of service. What we found most recently is that the information that is being permitted under the domain name registration contract on signing up for these misspelt URLs, is yet another domain name instead of accurate user name and notification. So, we can't find the individual and the DNS to block it and we have been thwarted in our efforts in stopping the spam because of the lack of correct information on the domain name registration form under whois.

Mr. David Muls:

I have a question for Mr. Smith. I would like to have your views on the one hand of desirability and on the other hand of feasibility of the exclusions. I don't know if you are aware this concept, but the idea would be that certain trademarks famous and well-known, perhaps even more famous and well-known than the usual standards, would be excluded from being registered by any party other than the owner of the trademark. In particular, this has been discussed in relation to the introduction of new gTLDs, in the sense that the list would be established prior to the introduction of new gTLD and those names on the list would be blocked from being registered, because those obviously would be prime candidates for registration by non-owners. Do you think this is desirable and, if yes, do you think it is feasible, or do you think this may be such a complex area that it might be difficult to find a solution?

Mr. Neil Smith:

Well, it becomes a complex area at the fringes or when you deal with local areas or small areas of technology. But I think that where the mark is inherently distinctive or somewhat unusual with respect to that and where a company can show major registrations in principle countries with a large number of those, it seems to me that those margins do sort of form internationally famous trademarks and ought to be protected on that basis. And then it is not unreasonable to draw up a list. I think you have to tread lightly at the fringes and maybe have a shorter list with respect to that, because you do have some difficulty in determining that. But I think that there is certainly some that ought to be protected on that basis and it would make a lot of sense to do that.

Ms. Laina Greene:

I would just like to recapitulate my understanding of what you said earlier, where we talked about well-known and famous marks. If I am not mistaken, you talked about going back to trademark registries itself and if there is a dispute then, using Article 6 bis in the Paris Convention, they could challenge that at the trademark registry itself to get the trademark canceled, as opposed to it being done by the domain name registry.

Mr. Neil Smith:

Yes. For purposes of being able to get on the list of trademarks on this index, or the links that came up as a mechanism, leave that to the local registration. Don't get involved in that battle.

Ms. Laina Greene:

And then the second point, if I understood you correctly, when you gave the example of the domain name challenge and Adults-R-Us, this would be turned to the courts and challenged there and then you would back with the judgment to the registry as opposed to the registry taking that upon itself?

Mr. Neil Smith:

Yes. With respect to that, and you know it is not with respect to the registerability of the domain name because I think the index tends to take care of the co-existence of many similar domain names with respect to its listing as being a trademark.

Ms. Laina Greene:

So, from what I understand you saying, we leave it to the existing systems that are there rather than creating an entire new system for handling it?

Mr. Neil Smith:

Yes, with respect to the national registration of trademarks and that designation being allowed to be placed on the index or directory.

Mr. Mark Partridge:

I have a question for Neil or Ms. Smith which follows up on something that you commented on, about the problem of finding parties because of incorrect information in the registration process. My question is what things can or should be done in the registration process to help avoid the kind of problems you saw or avoid disputes generally? There are a number of possibilities listed in RFC-2 and I would be interested in comments you or anyone else has on the kinds of things that could be done in the registration process.

Ms. Carol Smith:

Well, from a practical standpoint I had a conversation with an engineer just last week who came and pleaded with me to write a letter to Internet because the information that was once provided enabled this customer support engineer to find the correct registrant user under contact name e-mail and DNS address and to block the URL that was infringing by misspelling a trademark or deliberately redirecting one domain name for another. So, for instance if you typed in "Infoseek", it could jump to Adults-R-Us, for instance, and that is what we call redirecting a URL and it is illegal from our point of view, at least as a commercial breach of our contract of terms of service. That is our approach. We are taking it on a commercial basis rather than taking a legal approach in the courts. And what this particular engineer was saying is that he used to find the user behind this redirected URL by going to whois and looking for the contact information and then further investigating it and finding the DNS. Now, I don't know how he does that exactly and he promised he was going to write it all down so I could address you with this exact problem. But he said that by the registration process today under registering domain names, they can register the contact person to be another domain name and so he can't track the e-mail user address, or DNS contact to block it and so his efforts to stop spam have been thwarted. So what would be helpful is to have the contact information accurate, as an individual, an address, an e-mail address and from that I believe they can find the DNS if I am accurately tracking the technology there. And then, our technology allows us to block that particular individual who has violated the commercial terms of service and stop the infringing use of redirected URLs.

Mr........................?

With respect to the question. There are also privacy concerns with respect to people giving information about themselves. You have to weigh that against the opportunities for spam and deceit that go on if you don't have that sort of information. I always give the information about the graffiti that ends up on the wall some place. Well, if you put a video camera out there, even if the video camera may not even be activated, you don't get graffiti because people look up and they see the camera and they don't do it. So the present system breeds a lot of trickery and often deceit and things like that. So, you really do in this instance need some good identification of who the people are and who the perpetrators if you are trying to chase them, who the registrants are so you can do that. Also, in the law because you have agreements with these people, you need some constructive notice. Some way of giving them legal notice so if they don't pay, or if they do something wrong you can kick them off the system or give them a warning or whatever you need to do with respect to that. So, you need to provide constructively at that address the information that they are bound by the notice even if they say "I didn't get the mail" they are still bound by the law.

Mr. Philip Sbarbaro (Chief Litigation Counsel, Network Solutions, Inc.):

In partial response to Mark's question and Ms. Smith's, if Network Solutions is notified that the critical information on whois query is incorrect - be it the address, the DNS, the name - if it is impossible to locate that registrant and we are informed of that and do a little bit of due diligence to try and locate that person, and if they are not locatable, then they will receive a letter that says that in 30 days you either correct your information or your name is suspended.

Mr................?

I would like to ask Ms. Smith a question whether, in the exercise of your rules of service where you have blocked somebody, have you ever been sued?

Ms. Carol Smith:

No. We have not. All portals have terms of service, if you click on them at the bottom of their home pages you will find almost all web sites in fact have terms of service. But portals have a number of services they provide to users of the Internet such as chat, build your own home page, bulletin boards. It was well publicized that Yahoo was recently sued for having defamatory statements on their finance bulletin board page by anonymous users, and they have tightened up their terms of service under how you register to participate in the bulletin board service from last week or last month when it was first filed. The terms of service say the Internet is a community, a community that is shared by everybody and everybody in the community should act as you would want a perfect citizen to act. Therefore, try not to trash your community, be thoughtful of others. They start out with a general community statement then it gets to the more specific, that there are intellectual property rights owned by others and you must agree that you will honor those rights of others and not violate those rights. Then it goes into various specific terms that say that with respect to us, you will agree by using our service that if you violate the specific rules that we list below, such as posting obscene material, or by redirecting URLs, or by posting software that has been copied and I am trying to think of the term for this, where the engineers are able to block the lock on software so that you can download and copy software where illegal copying of copyrighted software is prohibited. And when you build your own home pages, recently that is a new service provided, it is unlimited disc space so that it is easily transmitted over the Internet copies of software. So, if we find that happens again, that is a term that is breached in our agreement and we block those users from doing that by e-mail notification first that their rights to participate on our service will be terminated if not immediately, then if you fail to remove or stop doing the actions that we have found to be true. Does that answer your question?

Mr...................?

Yes it does, except I wish you would have said that you had been sued so we could have found some other information, because my belief is that this sounds too good to be true and in a sense as long as you are making or enforcing rules that have force of law, you are covered. If you are making rules somebody could challenge them through the courts and I feel that you guys have defined rules of service and you have been sued regardless. Because there wasn't any law and I am wondering, I am not a legal person, but it seems to me that it would be interesting to note if these rules of service would be (he was interrupted here by Ms. Smith).

Ms. Carol Smith:

Those who have been blocked from the service do object, but usually their objection is "why are you blocking my pornography?". But Yahoo was sued for a bulletin board service and they reposted even more stringent rules on filing and registering requiring more accurate information about users who participate so that the anonymity is now gone on their bulletin board service. And I think that begins to clash, interestingly enough, with the other rights of privacy that Neil discussed and the Trustee Organization and Congress are struggling with the question of how you require users to participate and registration information that could be misused and how do you protect that information if you are going to require that. And that requires a certain amount of protection of those rights and I think companies are grappling with it now.

Mr...................?

I am just thinking of the case in Germany where the General Manager of ............ went to jail because he did not do what you have done for all intents and purposes.

Ms. Carol Smith:

Well, we learn. The Internet is a new and growing experience.

Mr.....................?

I can answer some of your questions. I have been involved in some of the cases involving this issue and at least the United States has a strong and I think growing contract law which allows Internet service providers and others, domain name assigners or others, to have agreements that are enforceable with their subscribers or those who register domain names. Those have been enforced and therefore solutions enforced. I am sure there are various individuals and companies who may bring suit because they don't like living by the rules, but we do have a strong law allowing enforcement of those contracts. If you have some modicum of knowledge and intent regarding that and it has been interpreted to cover shrink-wrap licenses (where you break the seal on some software package because there is a license that you could see in there and you are bound by it) and it has been interpreted of late to cover click-on licenses (where you get the opportunity to read it and it says click here and you are bound by this and don't click here unless you agree to be bound by these terms) and that is an enforceable term. You added the word difficulty when you say as I read the other day by browsing here you have agreed to their terms. Well, there is no sense and no click on with respect to that. I am not sure if that is a necessarily enforceable contract, that is an issue. But certainly, in a click-on which the Internet provides you don't get access until you agree to the term. That is enforceable and I think that is reasonable under the law.

Mr.Chris Gibson:

I had a question to follow up with Phil Sbarbaro which is, as I think I understood what you were saying, you have a very helpful approach on some of these issues in terms of trying to locate someone and then also with the 30 day notice and then I think you said that the name then may either be suspended or put on hold. What would then usually happen is a more final resolution of that kind of a situation?

Mr. Phil Sbarbaro:

Chris, the answer is that usually the person responds and the information is corrected. The problem is, as you know, your privacy laws are far more stringent, they are going to become more universal. A number of people, given the reverse access to peoples' identities and domain names and personal information, put bogus information on purpose. If you don't want your children to be sent anything, you put down some garbage for the registration information. Garbage in is garbage out, that is exactly what will show up on whois. But the main point is Ms. Smith's position and her corporation's position is extraordinarily responsible and extremely dangerous, because at once there are elements of censorship, at once if you want to do business with us you will do it in a professional, extremely responsible method, but that is an anomaly in this industry. When you take on that kind of responsibility you take on that kind of liability. Network Solutions does not look at a web site, would not know a web site if it hit it, it does not look at content, its a registrar of domain names. The second we cross that is the second I will have hundreds law suits, I will have thousands of law suits, and you cross that line dramatically so I applaud you, but you know the different corporations in this industry have a number of different goals, one primary one perhaps is survival and as a registrar and one of the first registrars that was my mission, it still is.

Ms. Laina Greene:

Can I add a comment on this. Taking that last point, I think it is very good that there are responsible rules of the game that you are trying to put in place, but coming back to the point that Don raised and Neil responded on, I think where it is very blatantly clear that there is mala fide involved or the person is doing things that are obviously illegal, then one could say okay you have not really opened yourself to a lot of litigation. But when you take this example, and maybe the whitehouse.com example, we have a place in Singapore called the White House and what if that place is a place that sold pornographic Playboy and they have a legitimate site whitehouse.com, but you have taken it upon yourself to decide you are going to block that site. You might have opened yourself to litigation because you have a competing legitimate interest. And then you take the standards of decency and pornography across the globe, including to privacy across the world, they are so different that in these areas you would probably open yourself to a lot of litigation.

Mrs .................?

Since I am not an advocate or employee of any Internet company, I am truly a technology committed user of this service. Let me give you my observations about the issues of terms of service. First off, a private company has a right to enter into a contract as long as there is consideration and as long as it is a contract that is the type that can be protected and then they can put any terms they want. That is fundamental in business law. Now, the fact that NSI has been sued, is because of their unique position of being the only game in town. And if I were in dispute, I would probably be extra cantankerous because I know I did not have any choices. It is different when you are talking about an Internet service where now there are choices. People have the right to say, if I do not want to sign up for that service I do not have to sign up for that service, because I do not want to live up to those terms. And if that is the value added service that they offer their users, I think that is fine. I think that if people want to pay for it and they want to be on that service, that should be the case. The situation with NSI I think to private industry was particularly disturbing at points because there was not other alternative. It was either abide by their rules or you did not participate. I think now that it is being opened up give consumers a commercial set of choices, people would be able to get to the right place where they want to go and if we get a value added services at fair terms then we are going to pay for those terms of service. By the way, most multi-national companies have codes of conduct which cover 99% of those terms and whether you are in a jurisdiction where the local law does not require that you to live up to that. If you are an employee of the corporation in that jurisdiction, then you have to live up to that code of conduct. That is a pretty fundamental basis for companies doing business around the world. Because they have standards they want to set for their business policy. And so, I think that getting down into a lot of argument about whether or not the terms of service are not right and what NSI is doing is wrong, does not add a lot of value here. I think the value to be seen from this, is that as you open it up commercially so that there are more choices, people can vote with their feet and we should be looking at the global standards at the highest level, to keep them as open and high level as possible so that people are able to exercise their choices. I hope that that gives you the perspective of the user and, by the way, we have been involved in issues around exactly those kinds of things with domain names. So, I understand what you are talking about. We would not allow people to use our private e-mail system to do any of those things at our company. They probably would be terminated, so that will give you our perspective.

Mr..............?

I just want to comment on one thing. I am not sure that other solutions have really been sifted out that many times when you look at the number of domain names that have been registered. It is really a very minute amount of the domain names. There are not really that many disputes with respect to that. They are high profile, and it is a new area of law which the courts have not wrestled with, so people take these positions with respect to it. But I think the courts have said that some of those positions are a bit off the wall with respect to that.

Ms..................?

I have researched most of those cases and I completely agree. I think the thing is that somebody has expressed surprise at the fact they were not sued. I am not surprised at all, because most of the people in the real world who are serious about doing business, are going to look at the environment that they are doing business in. So, those people usually don't have the resources to go and enter into a suit. And the suits that at least I have read, or the cases I have read involving NSI had to do with fundamental problems that we are talking about here. I mean about somebody having a legitimate right and then another person having a right in their jurisdiction. Or situations where they felt maybe the dispute resolution process did not do what it should do. But I think those few suits that came, came from the fact that they felt there were other alternatives or choices.

Mr...................?

I think the example that has been brought up here is very interesting, because it illustrates how local and international jurisdiction perhaps conflict in some cases. The example that has been brought up is whitehouse.com. I don't know if any of you know this, but Mary Whitehouse is an outspoken anti-pornography personality in the U.K. She is the Anita Bryant of the U.K., for those who are Americans. About 25 years ago or so a magazine, this is called a mens' magazine in the U.K., was launched with that name. I have no idea whether the web site has anything to do with that magazine or not, but I can see that there is a connection there. So, you don't start to think about things like free speech, the name was obviously adopted in a mocking way and I certainly agree that from the point of view of a user subscribing to your service, I'll say well I am agreeing to whatever your terms and agreements are and that is all fine. And I applaud you for doing that. But I could also see that the legitimate owner of that trademark in the U.K. might get upset in some sense. And I wonder where they would go to sue you if they had to.

Ms. Carol Smith:

I would like to try to clarify this. We view enforcement of our contract, our electronic contract, our responsibility such that we view each complaint or we follow up and investigate how a user registrant is misusing our service. And we do an investigation to see if they are violating third party rights. We go to NSI and the Internet and look at registered information - it is not an issue of censorship. We are not blocking search results, although people have written to us and said, "I don't like that search result that is coming up in Norway would you block that". We don't try to censor information that is on the Internet. What we are trying to be is a responsible corporation enforcing terms of service that other corporations would ask us to indemnify them on, which is that you are not going to allow your service to be misused to infringe other companies' rights. And if you do, you will indemnify us. So, we have to make sure that our services are being used legally. And we are also acting responsibly with respect to private information. We don't disclose it. We are going to have a registration process where we are asking permission and providing e-mail notification for private and personal information. And we use it strictly for our own record-keeping and do not disclose it to others. So, I have not been aware of any dangerous activity that we are doing.

Ms. Laina Greene:

I notice that the discussion is going on the basis of what Infoseek is doing, which may be slightly different from what our discussion is about with respect to the new organization, which may be a closer analogy to what NSI is doing. If I take the point that was made earlier, about the difference between a monopoly structure versus having competing structures. Now given that, from what I take of the discussion at least, can I therefore, say that we are going in the direction of perhaps looking at whether or not the new organization should be setting codes of conducts or methods to would prevent dispute resolution. And if so, the question then would be how much of it should they have and how much of it should they not do, because they may open themselves to unnecessary liability issues. I am trying to sort of see how what we have just discussed may be relevant to what we are supposed to be discussing.

Mr.................?

I guess I don't have an easy answer to that. It seems to me one place to draw the line is with respect to content issues, that you probably can't get involved in censorship in terms of content. You can deal with the name aspects, but with names like Whitehouse, the name may say it all, particularly in terms of recurrent activities in Washington. It may be descriptive or generic now for such activities but I am only kidding. But, the point is with respect to the content of what people are doing or what they do with their e-mails and what they do with their web sites, that is probably an area where at least the domain name assigner has to really stay clear of. There may be legal problems in the various countries no doubt and things that are illegal and offensive, but I am not sure if you can necessarily be responsible for those.

Mr. Chris Gibson:

I think at this point I would like to thank Mr. Smith and again thank all of those who came forward to comment on the various issues covered in this segment. We have another speaker here right now and I believe that is Ms. Shelley Hebert and I will ask her to go ahead and provide her statement.