[At-Large] - Price caps - was: The Case for Regulatory Capture at ICANN | Review Signal Blog

[bzs at theworld.com]

If I may kick over the chess board...

What underlies just about all these problems is the very notion that
one can register a domain name and not put it to use yet still retain
rights.

You can't go to the USPTO or WIPO and just register clever strings and
expect protection for them, e.g., sell them on the market, sue
infringers, etc.

Fundamental to trademark protection is that they are used in
commerce.

You have to provide evidence of use in commerce to tm orgs when you
register, and on each renewal.

And your rights can be terminated if someone can show the mark
represents no good or service. That's a much higher bar than "bad
faith".

Even ICANN's Trademark Clearinghouse (TMCH) requires this evidence to
tie your trademark to certain domain rights -- if nothing else
consider that an existence proof before countering that it would be
too difficult, we do it now.

250+ years of experience told the tm orgs one has to do that or else
we'd have what the domain system has now, a non-stop landrush for
strings and a demand that other entities (e.g., ICANN via UDRP/URS,
courts, etc) should expend whatever resources necessary to protect
these string rights.

Why?

Because, and this touches on Evan's points, at the root (ahem) of
trademark rights are consumer protections, not rights in ownership.
The latter are a result.

The purpose of a tm is to protect a consumer so they know when they
buy a box of Acme Soap it is highly likely to be a product of the Acme
Soap company and anything else is civil and/or criminal fraud.

We came close to this concept with secure websites and certificates
etc. but it's somewhat tangential, more like the holograms Microsoft
et al puts on their optical media and similar (e.g., license
activation.)

Instead ICANN has created effectively a type of fiat currency --
perhaps an economics historian can help me focus that term -- but an
abstract object with speculative value even absent any actual usage.

It's worse than that since currency generally has the same value w/in
a type (e.g., each US dollar is worth about the same) whereas every
single domain string is subject to individual valuation.

And every single domain name represents a type of monopoly on that
string whereas, e.g., any US dollar (or Euro, whatever) is as good as
any other.

Namespaces are not new or unique.

Telephone numbers, postal addresses, national identification numbers,
personal names (go ahead try to launch a singing career calling
yourself Beyonce or Sting), etc.

IANA manages hundreds of them such as MAC addresses for your wi-fi and
ethernet devices.

The problem here goes very deep and trying to patch it up with price
controls etc really is like rearranging deck chairs on the Titanic,
putting lipstick on the pig, closing the barn door after the horse is
long gone, whatever.

And the idea that trademark orgs like WIPO or USPTO could hold back
"premium" trademarks and charge much higher prices as we allow
registries to do is laughable self-dealing idiocy.

This entire structure smacks so much of the foxes guarding the
henhouse that to be honest it is a chilling indictment of the very
concept of "multi-stakeholderism".

The emperors really have no clothes.

Which is to say no legal and moral structure other than whatever
serves the participants' own selfish interests which amounts to who
shows up at a table for a vote.

Perhaps someone with better economics history credentials can explain
what a bad corner this industry has painted itself into and why a few
reforms here and there probably won't fix it.

Right now, to me, it all resembles the sort of structure tinpot
dictators and their corrupt cronies devise.

I realize people desperately like to think better of themselves.

All ICANN say is: Sorry! If the shoe fits...

-- 
        -Barry Shein

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