From a substantive point of view (and not just a procedural point of view,
which is a separate matter even if we can find consensus on substance),
it's important to protect domain owners who are not engaged in any kind of
fraud (and particularly not aiming at RC) who may have "similar-sounding"
domain names. Especially, those who hold legitimate trademarks that may
be regionally constrained.
Fraud ultimately relates to the *operation* of web sites and other web
applications, not specifically the *domain name* itself. This is a point
that NCSG/NCUC has been promoting for many years. If fraudulent activity
is related to taking advantage of a semantic similarity in domain name,
then it's the *fraudulent activity* that should be the target, not
specifically the domain name (though, removing the domain from DNS may be
a legitimate technological enforcement tactic once fraud is proven through
due process). If there is no fraudulent activity (and no consumer
confusion) then the similarity of the domain name ought to be irrelevant.
Bottom line: Similarity of domain name is not necessarily sufficient to
prove fraud in a trademark sense. Attack the fraud, not the domain name.
Confusing the two is problematic, especially in cases where trademarks are
limited to specific regions (while domains are globally-accessible).
IANAL, but this stuff is pretty basic. Trademarks don't map to domains in
a clean way, and those mismatches cause all sorts of problems when you try
to equate trademarks and domain names. They are not one and the same.
The quick and dirty ("easy") response to this is always overkill (a
terrible precedent to establish on this still-nascent technological
platform), and that's why many here have argued for better, more narrowly
targeted and nuanced responses to genuine cases of fraud.
When it's your own operations that are at issue, all you care about is
stopping the bad action, and that's understandable. But if a particular
method of stopping that bad action has further widespread collateral
damage, then we need to weigh all the consequences together when making
collective (i.e., "public") policy.
No one here wants to see leechers taking advantage of consumer confusion
to scam them in the name of the RC, simultaneously undermining RC's
ability to engage those who genuinely care about its mission. That's
vile. But many here also do not want to see a response to that bad-faith
activity open the door to all sorts of oppressive tactics for big
operations to suppress competition, etc.
There has been *much* bad-faith behavior on behalf of large trademark
owners over the years, not even necessarily on the Internet per se, but
extending to the Internet as their activities expanded onto the Internet.
"Brand-Name Bullies" was the name of David Bollier's book on the matter,
for one example. One must acknowledge the bad actors on both sides of the
issue in order to come to a fair resolution to it in principle and in
practice.
So:
(1) Let's aim to determine how to best target a response to fraud that
avoids overreach in substance, and yet is sufficiently effective to
prevent rampant abuse. Part of this may be determining just what ICANN
should care about with regard to enforcement and due process and what
should be left to other jurisdictions.
(2) Let's aim to accomplish this with a policy-making/enforcing procedure
at ICANN that can be generalized, is not ad hoc, and does involve
effective due process. We should not be the judges for any specific case.
We should be trying to set up a formal process whereby we can trust the
system to adjudicate fairly, regardless of what human beings populate that
system. The rule of law, not the rule of humans.
Can we agree on this framework to proceed?
Dan
--
Any opinions expressed in this message are those of the author alone and
do not necessarily reflect any position of the author's employer.
On Tue, July 1, 2014 11:42 am, Sam Lanfranco wrote:
> Having watched the IOC exercise its IP rights in Canada I agree that the
> IOC and RC issues should be handled differently. In Canada the IOC
> tended to worry about “free loading” off of the IOC brand, and was
> overly aggressive toward ethnic mom and pop restaurants with “too
> Olympic sounding” business names, even if their existence predated the
> awarding of the 2010 Winter Games to Vancouver. The IOC is not the RC
> and should be treated separately. [Oh! in a key Canadian case a family
> run Greek restaurant in Vancouver beat back legal attacks by the IOC]
>
> Lori writes about finding the right balance of consumer protection and
> free speech. The protection being sought here is protection from fraud,
> and not simply from counterfeit products. I would understand this to
> mean the balance between protection from fraud and access to free
> speech, based on the wording of domain names, and not simply consumer
> protection as normally understood. We should not always just label
> ourselves consumers, we are more.
>
> Sam L.
>
> On 01/07/2014 2:09 PM, Lori Schulman wrote:
>>
>> I echo Evan’s sentiments. I have been on the enforcement end of this
>> issue and it is a public threat with regard to fraud -- especially in
>> times of natural disaster. Consumers are bilked out of millions of
>> dollars from very clever squatters. Denying some extra measures of
>> protection do not necessarily help civil society when the
>> opportunities for fraud grow exponentially. I think that having a
>> reasoned, balanced approach makes sense. Separating IOC from RC also
>> makes sense because they are administered differently and there is a
>> different level of public interest involved. While NCSG may disagree
>> with the current proposals for protection of IGO’s and NGO’s, I
>> think
>> that there is room for meaningful compromise that achieves the balance
>> between consumer protection and concerns about overreaching on
>> intellectual property rights and inhibiting free speech.
>>
>> I think that it is worthwhile to note that trademark rights evolved
>> from concepts related to consumer protection. I will be the first
>> to admit that brand owners frequently lose sight of that very
>> important fact and that there is IP overreach. However, if we go back
>> to the root of the issue and acknowledge that trademark rights were
>> implemented to protect consumers from fraud and confusion then we are
>> serving the public interest. I believe that finding the right
>> balance of consumer protection and free speech is a core value of what
>> are trying to achieve on behalf of civil society and the name space.
>>
>> Lori
>>
>> *Lori S. Schulman*· General Counsel
>> 1703 North Beauregard Street
>>
>> Alexandria, VA 22311-1714
>>
>> P 703-575-5678 · [log in to unmask] <mailto:[log in to unmask]>
>> Description: cid:image001.png@01CC81E2.512C46F0
>>
>>
>
> --
> ------------------------------------------------
> "It is a disgrace to be rich and honoured
> in an unjust state" -Confucius
> ------------------------------------------------
> Dr Sam Lanfranco (Prof Emeritus & Senior Scholar)
> Econ, York U., Toronto, Ontario, CANADA - M3J 1P3
> email: [log in to unmask] Skype: slanfranco
> blog: http://samlanfranco.blogspot.com
> Phone: +1 613-476-0429 cell: +1 416-816-2852
>
>
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