Amen, and

(3) why isn't the RC itself spearheading this? If it would, it would not 
find reasonable folks at NCSG in opposition ...

It just baffles me. What it needs is speed, not far-reaching removal 
capabilities based on name similarity ...

Nicolas

On 2014-07-01 3:25 PM, Dan Krimm wrote:
>  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
>
>