[ncdnhc-discuss] Board Positions on .ORG; Answers from V.Cerf--full text

[James Love]

Karl, thanks for note regarding the proposal for clarification of UDRP rules
on "confusion," and the non-commerical use of a string in the SLD .org
space.

I am *not* suggesting ICANN or the registry investigate the way .org domains
are used, or make any complicated legal requirements for use of a .org
domain.  I *am* suggesting that someone who uses the .org domain for
non-commerical purposes (*loosely* defined) be protected from having the
domain taken away by a commerical trademark owner in the UDRP, on the
grounds that the domain is confusingly similiar to a commerical trademark.

The distinction is important.  The enforcement mechanims for the UDRP
already exists.   Every .org domain holders is bound by contract to use the
UDRP.  When the UDRP is triggered, by someone asserting confusion with a
*commerical* trademark, the UDRP panel should be instructured that
non-commerical use of a domain is not confusing.

This is a very minor but useful instruction to provide the UDRP panels.  The
commerical trademark owners would benefit by this, in the following way.  If
there was a commercial use of the .org that was confusing with their
commerical trademark, they could pursue remedies under the UDRP.  But if it
was simply a non-profit (formally *or* informally organized, formerly tax
exempt *or* not) organization using the same string, they would not be
expected to buy the domain or pay for a UDRP proceeding.  This would save
the commerical trademark owner money.    It would result also, I believe, in
giving the .org TLD the type of meaning that most .org domain holders want
it to have, in a non-coercive and non-bureaucratic way.   Jamie

<----examples of .org domains that are similar to strings used for
commerical purposes-------->

CPTech.Org  Consumer Project on Technology
CPTech.Net  - Cathodic Protection Technology, Pte Lid,
CPTech.Com  -  Corporate Technologies, Inc.

http://www.att.com   AT&T
http://WWW.ATT.ORG  / Associated Talmud Torahs

http://www.mediaaccess.com/   Medica Access Internet Solutions
http://www.mediaaccess.org   The Media Access Project

http://www.apc.org/  The Association for Progressive Communications
http://www.apc.com  The American Power Conversion Corporation

http://www.acm.com/   Adams Capital Management
http://www.acm.org/   the Association for Computing Machinery

http://www.epic.com   EPIC Technology Group Solutions
http://www.epic.org Electronic Privacy Information Center

http://www.ala.com/   Andrew Lloyd & Associates
http://www.ala.net   ALANet INternet Services
http://www.ala.org   American Library Association

http://www.cpsr.com  CPS Resarch
http://www.cpsr.org    Computer Professionals for Social Responsibility

http://www.aaa.com  the American Automobile Association
http://www.aaa.org/ the Amateur Astronomers Association of NY

----- Original Message -----
From: "Karl Auerbach" <karl at cavebear.com>
> The commercial/non-commerial question can be very muddy.  For example,
> suppose a non-profit has links on its web page to commercial sites that
> pay for click-throughs?  Here in the US the IRS requires that tax exempt
> entity account for such revenues as if it were not tax exempt.  And the
> theatre company I work with - and which has a .org name - acts in many
> respects exactly like a for-profit.  For instance it spends hundreds of
> thousands of dollars every year promoting our shows.  And although we are
> involved in the performing arts and are a non-profit and tax exempt
> entity, we are still in the stream of commerce (broadly defined) and
> really do like the concept of protecting our company's name.
>
> But the deeper issue here is something that is akin to the idea of
> goodness or badness by association.  Here what is being suggested is that
> there may be some sort of legal or or UDRP-visible aura that might attach
> to a domain name simply by virtue of the company it keeps, i.e. the TLD it
> is in.
>
> That has always bothered me.  My own personal preference is that actual
> use is what must be objected to or what must be used as a defense.
>
> Over the last year or so I've been asking people whether we might improve
> things a bit, at least here in the US, if the US trademark law were
> amended to say something along the following lines:
>
> No holder of a registered mark would be placed in jeopardy of losing that
> mark because the holder did not obtain a domain name in any or all of the
> domain name registries available to it.
>
> (Of course, one would want more precise language.)
>
> My feeling is that something like that might help mark owners feel a bit
> less compelled to register early and often as TLDs (and subdomains of
> ccTLDs) open up.
>
> --karl--
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