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Dear Kale,<br>
<br>
unfortunately all we have for this interaction is a mailing list.
You'll lose a lot of people moving it to a discord server.<br>
Kindest regards,<br>
<br>
Olivier<br>
<br>
<div class="moz-cite-prefix">On 01/07/2019 16:04, Kale Williams
wrote:<br>
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<div>Good Day all, </div>
<div><br>
</div>
<div>Could we perhaps move this discussion to a discord server ?
It would be much easier to follow using something like that vs
via email. </div>
<div><br>
</div>
<div>Just a suggestion,</div>
<div>Kale Williams </div>
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<div dir="auto" style="font-size:85%; color:#575757">Sent from
my Samsung Galaxy smartphone.</div>
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<div>-------- Original message --------</div>
<div>From: Karl Auerbach <a class="moz-txt-link-rfc2396E" href="mailto:karl@cavebear.com"><karl@cavebear.com></a> </div>
<div>Date: 01/07/2019 3:57 pm (GMT+00:00) </div>
<div>To: JOHN MORE <a class="moz-txt-link-rfc2396E" href="mailto:morej1@mac.com"><morej1@mac.com></a> </div>
<div>Cc: LAC-Discuss-en <a class="moz-txt-link-rfc2396E" href="mailto:lac-discuss-en@icann.org"><lac-discuss-en@icann.org></a>,
At-Large Worldwide <a class="moz-txt-link-rfc2396E" href="mailto:at-large@atlarge-lists.icann.org"><at-large@atlarge-lists.icann.org></a>
</div>
<div>Subject: Re: [lac-discuss-en] [At-Large] - Price caps -
was: The Case for Regulatory Capture at ICANN | Review Signal
Blog
</div>
<div><br>
</div>
</div>
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<div class="PlainText">The foundation of the US requirement of
"use in commerce" is to satisfy
<br>
the Article I commerce clause power of Congress to create
trademark <br>
law. Other countries don't need to overcome that
legislative-authority <br>
hurdle. Perhaps one might imply "use in commerce" as a
necessary thing <br>
for when the US Dept of Commerce got involved in "NewCo"
(eventually <br>
ICANN) in the first place, but nobody really inquired about
authority. <br>
(Or rather, we inquired, but we got hand-waving responses
best <br>
characterized by the voids rather than the substance.)<br>
<br>
I've registered a whole pile of marks on the basis of
"Intent to use". <br>
Sure, I may eventually have to show that I eventually used
that mark, <br>
but in the meantime I've got a trade/service mark without
actual use in <br>
commerce. (In my own work we actually do intend to use -
our trademark <br>
attorney would come after us if we didn't - but I can't say
that of <br>
everyone.) There's an interesting additional twist which is
that after <br>
the five year first period of US trademarks (and the filing
of the right <br>
papers and fees) the US mark becomes incontestable. Even
domain names <br>
don't attain the status of "incontestable".<br>
<br>
In the domain name space "use" is a very vague term. Does
it mean that <br>
a name actually has some RR records attached. If that's
"use" then most <br>
registrars would simply attach (as many do) a couple of MX
records to <br>
every registered name (in addition to the obligatory SOA and
NS <br>
records.) Certainly "use" can not mean "website" because
there are many <br>
uses of a name distinct from supporting the world-wide-web,
which is <br>
merely one application out of many that are on the
internet. And in <br>
this era of security concerns is one obligated to have a DNS
server for <br>
the zone that is willing to accept DNS query packets from
any and all <br>
sources?<br>
<br>
I've got a registered name that I prefer that only certain
people even <br>
know about - behind it is a zone filled with names with
resource records <br>
designed to stress DNS software - in fact I have yet to see
a DNS <br>
resolver that can handle all of the cases. This zone is
present to <br>
support software testing. Anyone expecting to interact with
those names <br>
will be sorely disappointed (especially as there is a lot of
buggy DNS <br>
client software out there.) Does that constitute "use"?<br>
<br>
In many other areas - such as the acquisition of land or a
painting, <br>
even a painting beyond copyright, there is no obligation of
use of the <br>
land or to display the art. In fact one of the touchstones
of <br>
"ownership" is the power to say "no" (or, as art museums do,
impose <br>
terms of use on visits to the museum that forbid the making
of copies, <br>
even copies of paintings that have long since fallen into
the public <br>
domain.)<br>
<br>
Sure, I'd like to say 'I'm a refugee' or 'I'm a
entrepreneur' and have <br>
that open the gates to the US National Gallery so that I can
take home <br>
my favorite Berthe Morisot painting That may sound absurd,
but it is <br>
what I hear when I hear advocacy of some sort of hierarchy
of privilege <br>
with regard to domain names.<br>
<br>
--karl--<br>
<br>
<br>
On 6/30/19 4:36 PM, JOHN MORE wrote:<br>
> Karl<br>
><br>
> Your attack on the trademark analogy is off base. For
trademarks to be registered you have to show use. That is
not true of domain name speculators. Even for common law
trademark, you have to show a first use.<br>
><br>
> John More<br>
> ISOC-DC<br>
><br>
>> On Jun 28, 2019, at 8:03 PM, Karl Auerbach
<a class="moz-txt-link-rfc2396E" href="mailto:karl@cavebear.com"><karl@cavebear.com></a> wrote:<br>
>><br>
>><br>
>>> On 6/28/19 2:36 PM, Evan Leibovitch wrote:<br>
>>><br>
>>> Here's another, anecdotal datapoint: I have
been involved in the Internet for nearly as long. But it's
been helping family, friends, small businesses, colleges,
religious institutions, and refugees in camps. I've worked
with entrepreneurs both new and established, struggling to
make a presence on the Internet and finding that their first
20 choices were only available at an aftermarket premium.
The result is that they either had to:<br>
>>> * change their brand name to suit the
available names (this has<br>
>>> happened more than once)<br>
>>> * agonize over whether to settle for a domain
name using hyphens<br>
>>> * pay a lesser premium in a new TLD they
don't know is fully reachable<br>
>>> * resign themselves to having a non-memorable
(ie, shitty) domain and<br>
>>> using other strategies to lead people to
them.<br>
>> I agree that it is sad that we don't live in a
world of pink ponies, unicorns, perfect equity, and no
competition for resources.<br>
>><br>
>> Your people want "brand names" - which I read as a
synonym for "trademark" - and find that someone else has
already registered it?<br>
>><br>
>> That's pretty normal life in the land of trade
names. Somebody got there first. Somebody else go there
too late. That is not speculation, that is not abuse.<br>
>><br>
>> Athol Fugard wrote that "the saddest words ... are
'too late'."<br>
>><br>
>> Or are you arguing that there is some sort of
elevated goodness attribute that should allow "family,
friends, small businesses, colleges, religious institutions,
and refugees" to preempt prior uses? And who shall be the
judge that weighs applicants to measure who is the more
worthy?<br>
>><br>
>> (Given that my wife and I make large contributions
of our time, labor, and money to non-profit and charitable
organizations, we might find that kind of preemptive power
useful. But I doubt that such a thing would always be
perceived as fair or just by the prior users.)<br>
>><br>
>> (And I do wonder about the inclusion of "small
business" and "entrepreneurs" in that list - I'd love to
have my small businesses to have a power of preemption. And
in the several start-ups that I've done I would have
welcomed the ability to take a domain name away from another
prior user.)<br>
>><br>
>> Are you focusing on the notion of "use"? If so,
what is "use" of a domain name? Must it resolve - for any
query from any source - to an IP address, or a TXT record or
something? If that requirement were put into place you can
bet that every registrar will quickly deploy a "sufficient
to pass muster" resolver service for its customers to use.<br>
>><br>
>> (Since you mentioned entrepreneurs - A common
practice in start ups is to register a portfolio of domain
names as candidates for products or corporate names, to hold
them in private for several years, and then to sell off the
ones that were not selected to be put into play. Does that
constitute a "use" or an "abuse"?)<br>
>><br>
>> Regarding hyphenated or even non-semantic names -
Anyone these days who depends on humans making semantic
sense out of a domain name is living in days of fading
glory. Search engines, especially when embedded in browser
address bars, have long ago started to diminish the use of
domain names as carriers of semantic content. And the rise
of application handles such as facebook or twitter names has
diminished that further.<br>
>><br>
>> --karl--<br>
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