browse comments: comments on rfc-3

comments on rfc-3
Russ (a@help.org)
Thu, 18 Mar 1999 20:27:33 -0500

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-There is currently a serious problem with the situation of trademarks which
are not in the "well-known" or "famous" category. I currently have
registered domains such as INVISIBLE.COM, BLIZZARD.NET, etc. These terms
are, of course, trademarks of numerous different companies for many
different reasons. The problem comes in when one of these companies decides
they want the domain name and hire an attorney to make misleading or false
threats that the registrant is violating laws or will be sued. In some
cases attorneys will violate their ethical standards and use intimidation
tactics in an attempt to 'steal' the domain. I was recently contacted by an
attorney representing American Dairy Queen and I was told not to use the
domain I registered BLIZZARD.COM. What does WIPO suggest in these matters?
Often it is an individual or small company who could not afford the dispute
resolution or trial costs.

-I also find it interesting that some companies want some type restrictions
on the registration of domain names. It seems to me that this would
circumvent laws in the US. Currently Internic refuses to register names
relating to the Olympics and they site US laws that gives the Olympic
Committee certain rights associated with these marks. However, the laws
require the party that was infringed upon to prove that other party is
infringing upon the mark (which may or not be the case simply by the act of
registration). Under this scenario the party that tries to register the
domain has to prove they won't infringe. This may be right or wrong but it
is not how the laws are written. As a side note I also find it interesting
that AT&T is one of the biggest complainers in this are. I have been in
litigation with this company for several years over their telemarketing
operations. The companies legal staff has always been of the opinion that
if it is legal (according to their often ridiculous interpretations) then it
is okay to do it. Certainly I would put registration of a domain name with
"ATTT" in this category. Should we now make all telemarketing illegal and
force AT&T to prove they can make calls legally?

-Many, if not most, domain names bought for resale are generic terms even
though they might be covered by one or many companies marks. The report
only discusses people who specifically buy marks of other companies with the
intent of selling specifically to that company. These two situations are
substantially different. Also, many (if not most) situations where there is
an infringement it is a result of what is done with the domain name (use in
commerce, etc.). The mere registration of the name is not necessarily the
deciding factor.

-Is it prudent to depend heavily on the registration "agreement." Is this
actually a binding contract. Certainly the current "agreement" via Internic
has several provisions that are outlandish and are simply forced upon users
who want to register a domain. Will this hold up under contract law?

-First-come first-serve. This is not exactly true, at least with domains
that are released after being "on hold" for non-payment. How the system
works is that someone registers a domain via e-mail. They are then billed.
The domain eventually goes on hold and is released if payment is not made or
if a renewal payment is not made. However, this process could take several
months. The registrant can then try to sell the domain during this period
pay only if a resell is made. When Internic hit the 1 million mark a couple
years ago it turns out that only about 500,000 were paid. This process
gives the appearance that most domain are already taken when, in fact, it is
just bouncing back and forth between brokers. This is a common marketing
trick which is to give the appearance of a false shortage. This is often
done with collectors items such as Beanie Babies.

The trick to the whole system is that domains are released prior to them
being available in the public WHOIS. For example, if a domain is released
at 2 PM it does not show up as available until the next day but it still can
be registered during that period. Therefore, when a domain is dropped only
people that know this trick have a shot at the domain. The information at
Internic.net not only does not explain this, it gives conflicting
information. This has resulted in some users flooding the Internic system
by attempting to beat out others doing the same thing. Internic's answer
was to remove the "on hold" notation in the public WHOIS. The vast majority
of desirable domains being released in this fashion go to about 5 - 10
people/companies.

Russ Smith
http://consumer.net