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

[Karl Auerbach]

On Mon, 1 Apr 2002, James Love wrote:

> 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 difficulty is, as I see it, is that even one who believes they are 
non-commercial is often engaged "in commerce" to a degree that they can be 
considered to be impinging on a trademark or, to put it the other way 
around, are able to create their own trademark rights.

In other words, the .org suffix really doesn't provide a demonstration 
that the the word before the ".org" isn't being used in a way that 
improperly impinges upon someone elses legitimate trademark rights.

(And I once again emphasise that a non-commercial may actually be 
sufficiently engaged in commerce (I'm using US-specific terminology here) 
to obtain protection of the commerce-related uses of their name/mark.)

That's why I focus on actual use rather than context.

And since it's my belief that .org ought to be a place for everybody to
go, a rule that amounts to a presumed immunity would tend to be a magnet
attracting the kind of slime (e.g. spammers) who look to hide behind such
things.  Were this to occur, the character of .org might shift so that it
would be perceived by many users as a sleazy and blighted TLD.

I do agree that UDRP panelists need to be occassionally reminded via
something no less subtle than a 30 meter high neon sign (a la Las Vegas)
that a use of a name in a non-commercial way can never be construed as an
improper act under the UDRP.  (That is unless the UDRP wants to move into
the difficult area of "tarnishment".)

		--karl--