At least they should get credit for picking an appropriate
acronym, despite their intentions. This certainly would HARM
society. I guess that makes it "confusingly similar"
:-(
Does make one wonder if the same effort (and extortion) is
being applied in the assignment of telephone numbers.
Consider that the U.S. has a well-developed method of mapping
words to phone numbers. 1-800-BUY-DOGS (800 is a freephone prefix) can be
a highly-valuable commodity. Of course, it conflicts with
1-800-BUY-ENGR. Is this confusingly similar? Certainly assigning
1-800-289-3647 to either deprives the other...
When all the 800 numbers were assigned, the 888 prefix was
introduced. I don't recall defensive registrations. But with 877,
866 and 855 active in the NANP (and 844, 833, 822, 880-887, 889 reserved)
there's plenty of time for a sunrise period. There is a vibrant fraud
industry (e.g. 876 is the country code for Jamaica).
Even without the name -> number mapping, some companies
feel that they have substantial brand equity in telephone numbers (freephone or
not.) And there are the whole "Local Number Portability" / "Full
Mobile Number Portability" requirements that have rendered "local number"
and "mobile number" meaningless.
There is a lot of precedent (and twisted humor) to be found in
analogies between the telephone and internet addressing systems... Perhaps we
should start using them when pointing out the pitfalls (and absurdities) of
these DNA proposals.
Yes,
this is at least 47% serious.
Timothe Litt
ACM Distinguished
Engineer
---------------------------------------------------------
This
communication may not represent the ACM or my employer's views,
if any, on
the matters discussed.
What is amazing is how trademark law becomes so contorted to
commercial interests at ICANN. This proposed list a good example.
What is supposed to be a mechanism to protect consumers from confusion
about competing goods winds up becoming the creation of a list to prohibit a
word's use all together in a name space, for a fee of course. Actual
trademark rights and their boundaries, limitations, etc. are irrelevant.
Robin
On Aug 19, 2012, at 7:07 AM, Milton L Mueller wrote:
Excellent
points, Edward.
Thank
you for the heads up Kathy. This proposal is dangerous not only in terms
of intent but also in terms of proposed implementation.
Melbourne
IT proposes replication of the .XXX Sunrise B rollout for famous marks.
Sunrise B allowed those claiming interest in a word / mark to make it
disappear from the .XXX world by paying a one time fee that would lead ICM to
disappear the word forever. If the brand owner later wanted to resurrect the
word for use in commerce: no luck.
Forget
transparency: there is no public record of who paid to disappear the word and,
in fact, if the three Deltas (faucet, airline, dental) each wanted to
disappear the word in conjunction with .XXX, ICM would gladly pocket the
fee from each of the three with no one being the wiser. In ICM's ideal world
all businesses would be call "Smith", all Smith's would pay to disappear the
word and ICM would be very rich for doing nothing more than delisting a single
moniker.
For
those of us who live in jurisdictions with use requirements for trademarks,
this novel means of 'defensive registration' turns that concept on the
head with a 'nonuse' requirement. Once delisted the mark can never be used.
This does not so much help consumers avoid confusion as it does reduce
competition and reduce linguistic possibilities. It is the anti-trademark or,
if you will, the 'nonuse' trademark.
Trademarks
historically are limited by geography and product class. The internet
disrupted these concepts, concepts that are somewhat akin to fair
dealing in other i.p. worlds. The introduction of new gTld's presented a great
opportunity to reintroduce the concept of product class to the online
environment. Politics being what they are that did not happen. Instead we are
once again faced with an attempt by intellectual property owners to expand
i.p. rights online in a way they could not and have not been able to
achieve offline.
These
efforts must be resisted. If not, let me introduce you to the 'domain name
navigation right' : one of several new magically created i.p. rights that are
being bantered about in the i.p. community. If they can achieve in ICANN a
list of famous marks, something brand owners have been trying to do since 6bis
was introduced to the Paris Convention in the '20's, who can blame them for
turning to ICANN whenever their attempts to expand i.p. protection fail
elsewhere?
Hi
All,
I don't know how many people remember our work on the GPML - the
Globally Protected Marks List. It was a proposal of the intellectual property
community to create a "reserved list" of words that would be ineligible for
registration as second-level domain names in the new gTLDs. At least, not
until the user first proved that there was no remote likelihood of confusion
with any of the trademark owner's users.
Needless to say, this is not
ICANN's balliwick. It's not a word smith, or a trademark forum, it's a
technical organization. So we, NCUC, responded that the right place to create
protections for "famous marks" is somewhere other than ICANN.
We
pointed out that while trademarks have international protections via treaty,
famous marks don't. There is simply no consensus internationally on famous
marks, no international list of famous marks, and no international standard of
protection on famous marks. So Orange, Caterpillar and Virgin are
famous marks to some, and normal words to others.
So, sigh, the issue
rears its head again. Melbourne IT released a paper called Minimizing HARM
where it posits the creation of an infinite number of "High At-Risk Marks
(HARM)," their new term for Famous Marks, and a permanent protection in all
new gTLDs -- including takedown by the URS dispute process in two days (2
days!) unless the registrant responds **and pays**. We fought against
two weeks as too short -- especially for the many new gTLD domain names that
will be registered by individuals, small organizations, small businesses, and
people from countries where English is neither a first (nor second) language.
Two days!!??
One bright note is that new "HARM" famous marks are
supposed to "be distinctive" and "not match common words," but the paper notes
that "marks like Apple or Gap may not be eligible." The use of the word
"may" instead of
will-definitely-not-be-eligible-because-they-are-normal-words-used-by-everyone
suggests to me that the "slippery slope" of expansion has already
begun.
Plus there's no limit -- infinite numbers of these new
soon-to-be-famous registrations possible.
So let the fun begin, a new
proposal to massively expand intellectual property rights now takes the
floor.
Press release by Melbourne IT is posted by Reuters at http://www.reuters.com/article/2012/08/16/idUS121841+16-Aug-2012+BW20120816.
It includes a link to the "Minimizing HARM" paper released
yesterday.
Sigh and best,
Kathy
Kathy Kleiman,
Esq.
Internet Counsel, Fletcher, Heald & Hildreth, Arlington, Virginia,
US
Co-Lead Internet Law and Policy Group
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IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA 94117 USA
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