Comments filed today by American Red Cross

[Andrew A. Adams]

> 2)    I don=92t understand how acquiring a domain name is not a commercial =
> transaction. Even if we agree say it=92s a =93consumer transaction=94, the =
> registrant agrees to certain obligations. Whether you use the internet for =
> non-commercial purposes or to sell widgets, I think it important to remembe=
> r that.  Just as there are consumer protection laws, aren=92t consumers exp=
> ected to have a certain level of responsibility?

Everry day I engage in quite a number of commercial transactions. I am not
primarily a commercial actor and expecting me to have the same level of
resources to deal with all those commercial transaction as large corporations
is a recipe for a disaster, and increasing the power of large corporations.
There are numerous ways in which laws governing commerce provide greater
rights to the individual than to commercial organisations, to counter the
economies of scale large organisations have. For example the distance selling
regulations in the UK provide for a seven day cooling off period for the
consumer to decide they don't actually want the goods they ordered. The
selling company do not have similar rights to recall the goods in those seven
days, indeed cannot repudiate the transaction once delivery has been made.

> 3)    As I stated in my comment and as I have been saying since I joined Re=
> d Cross, it would be great if ICANN recognized the differences between how =
> domains are used when setting policy.  Why can=92t the pricing, rules, proc=
> esses be different for those that are not using the DNS to sell widgets or =
> make a profit?  However ICANN=92s domain registration (its =93remit=94) vs.=
>  domain name use (what it claims is outside of its remit) debate clouds tha=
> t issue sometimes.

This is the whole point with considering domain names as trademark elements
on their own. As Milton pointed out in Ruling the Root and as Michael Geist
has pointed out many times, the standard we have for trademark rules in
cyberspace is ridiculously overkill already compared to what happens in the
non-virtual world. I would much rather that domain names per se were regarded
as only one element of passing off and that evidence of the others was
required to even bring a case. If that were so, then a fast response time
might be legitimate (having to present a strong prima facie case of real
trademark infringement beyond simply having registered a <trademark>.com
domain name would be much better than the TM-holder situation now).

Then again, this is all probably just a storm in a teacup these days.
Consider the fact that most facebook users don't even have facebook.com
bookmarked now, and certainly they don't put "facebook" or "www.facebook.com"
in their URL box on their browser - they put facebook into the search box on
their browser and click on the first link that comes up.

As Milton and many others have pointed out, Debra's whole approach here is
based on the idea of guilty until proven innocent, and that whenever an
accusation is made there is a strong case against the defendant who should be
forced to (possibly multiple times if they happen to have registered a domain
which multiple large commercial organisations would like to have registered)
defend themselves and do it quickly.

As for the comment regarding those from developing countries having had
internet access when they registered a domain and therefore can be assumed to
have continuing access, that really is a  bizarre response. Konstantin's
point was that in some places access is flaky. That may indeed be one of the
reasons for having registered a domain and to have one's servers in a
different country. One can then continue to provide information services of
many different types through a 24/7/365 system, updated as and when the
registrant needs to do so. That need may only arise once a month, and may be
done when their local connectivity is possible. Between local intermittent
access and individual demands on time (holidays, personal business, illness)
there may well be considerable time between the issuing of a notice of
proceedings and an individual receiving it. The individual then must find the
time and other resources to respond to a complicated complaint process.
Requiring this to be done in 14 days is way too short for any reasonable
individual - most people I know take two week holidays at some point during
the year, so while I agree that a balance must be struck, the rights and
needs of individuals (whom Milton has pointed out have been badly treated by
greedy large organisations many times in the DNS space) require a longer time
period. Sorry if that  means the Red Cross can't immediately shut down bogus
domains misusing their name, but then again would the registration of
red-cross.football by an individual England fan (remember, the flag of the UK
is a red cross on a white background) be trademark infringement? It should
not be, IMHO, unless the associated web site with the DNS is used in some way
to commit passing off and perhaps fraudulent charity donation collection.

There are no easy answers here, but stamping on the billions of legitimate
individual users (who may wish to register their son Ty's name for example)
so that the large organisations can claim the wordspace is nowhere near the
right answer.





--
Professor Andrew A Adams       aaa at meiji.ac.jp
Professor at Graduate School of Business Administration, and
Deputy Director of the Centre for Business Information Ethics
Meiji University, Tokyo, Japan