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

[James Love]

I would like to offer a different way to frame the issue than one of
regulating what someone does on a .org site.  By addressing the issue of
what trademark claims one can make, there will be a self selection on .org.
One can allow completely open registration on .org (the NC and ICANN board
recommendation and certainly what every registrar wants),  and not permit
any challenges to the use of a domain for any reason.   At the same time,
one can provide some guidance to the UDRP panels as to what constitutes
confusion under the existing UDRP guidelines.  In particular, one make it
clear that a non-commercial use on .org is not considered confusion with a
business use that may have a trademark involving the same domain name
string.     This would make the NC suggestion of "marketing" .org for
non-commercial use have some content and structure, and it would have the
costs of this policy borne by those who seek to take .org domains away.

If one has strong ideological reasons to oppose any differentiation of uses
of TLDs, then this will not be well received, and there may be some other
pragmatic or strategic concerns here, that have not been explained.    But I
have offered this to address concerns that the NC recommendation for .org is
too vague in some areas, and to address our own concersn about NGO's being
knocked off .org domains by businesses who have similiar trademarks (as has
already happened in .net).

   Jamie

----- Original Message -----
From: <KathrynKL at aol.com>
To: <discuss at icann-ncc.org>
Sent: Saturday, March 23, 2002 12:16 AM
Subject: [ncdnhc-discuss] Board Positions on .ORG; Answers from V.Cerf --
full text


> To the NCC:
> Here is the full text of the correspondence with Vint.  As you can see,
> messages went back and forth. The only thing I have added is names and
> initials to help identify who is writing the various sections.
>
> as I mentioned in my summary email, I found the ICANN Board's discussions
> difficult to follow (especially from scribe notes).  I am greatly relieved
to
> hear that .ORG will remain unrestricted -- both before and after
> registration.
>
> regards, kathy kleiman
>
> Vint Cerf (VC):
> >>>I think you will see that the directors gave guidance to the president
of
> ICANN that no restrictions be placed on registrations in .org >>
> >>
> >>
> Kathy Kleiman (KK)
> >>I see the guidance to the president regarding open registrations, and it
is
> indeed reassuring and extremely supportive of open communication on the
Net.
>  But self-selected, unrestricted registrations in .org is the front end.
If
> I might, I don't understand what restrictions have been placed or guidance
> given to the backend.
> >>
> >>Will .org registrants face a new set of frightening challenges based on
the
> nature of their communication online -- the content of their website?  two
> specific questions:
> >>
> >>a) did the Board endorse the recommendation that there be a requirement
of
> a noncommercial certification in a future .org registration?  Such a
> certification might create a terrible new set of legal problems online.
Here
> are some problems that might raise.  Would a girl scout troop have to
certify
> that their use of .org is noncommercial to get a registration?  Does that
> certification become invalid (or their registrations subject to
revocation)
> when the group posts information about upcoming cookie sales, or even a
price
> list of cookies?  What about Kennedy Center memberships?  Little League
> raffle tickets? Putting a link from my personal website to the old car I
may
> be trying to sell?
> >
> VC:
> >the board concluded that no certification or even post-registration
> challenge process as regards non-commercial status be introduced.
> >
> >
> KK:
> >>b) challenges after registration.   Did the Board support the use of
> challenges after the registration in .ORG -- challenges beyond the UDRP?
I
> see Amadeau recommending them; and I see Alejandro warning that such
> challenges involve the content of the website, not the domain name.
> >
> VC:
> >Amadeo suggested a challenge procedure but the board did not adopt it.
> >
> >
> >
> >
> KK:
> >>Facing a challenge of whether their bake sale is a commercial or
> noncommercial activity would be  a horrible debate for any noncommercial
> group, family or individual to have to enter into.  It would pit large
> corporations against small organizations, families and individuals --- and
> encourage challenges based on the content of the website, not the activity
> online.  It would be used by companies and others to drive off legitimate
> criticism and concerns from .ORG.  What a terrible thing for a child to
have
> to face, or his parent.
> >
> VC:
> >the board wanted to simplify the operation of .org as much as possible
> >
> >
> KK:
> >>In the real world, companies have no legal right to challenge content
> unless they can show some level of illegality, such as infringement.  If
they
> cannot show some threshold level of copyright or trademark infringement,
> their lawsuit will be thrown out of court (we call it not passing the
laugh
> test).  If they cannot prove their claims of infringement, then they lose.
> These checks keep out harassment by companies.
> >>
> >>ACM-IGP just completed a study of international trademark laws, and I
did
> not find a single country that extends trademark past goods and services.
I
> was amazed at the consistency from Brazil  and the Czech Republic (both
with
> especially strong protection  for noncommercial activity), to Spain, the
UK,
> Canada, and even China (and many others).
> >>
> >>This is a long way of saying that law gives the commercial community
fewer
> rights to challenge use in the noncommercial sphere, .org, not more.
> >>
> >>Mr. Cerf and other Board members on this email:
> >>If you could help me, what is the guidance for the President on the
ex-post
> challenges and certifications?  thanks so much, kathy kleiman/acm-igp
> >
>
>