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

Karl Auerbach karl at cavebear.com
Mon Jul 1 03:19:12 UTC 2019

The foundation of the US requirement of "use in commerce" is to satisfy 
the Article I commerce clause power of Congress to create trademark 
law.  Other countries don't need to overcome that legislative-authority 
hurdle.  Perhaps one might imply "use in commerce" as a necessary thing 
for when the US Dept of Commerce got involved in "NewCo" (eventually 
ICANN) in the first place, but nobody really inquired about authority.  
(Or rather, we inquired, but we got hand-waving responses best 
characterized by the voids rather than the substance.)

I've registered a whole pile of marks on the basis of "Intent to use".  
Sure, I may eventually have to show that I eventually used that mark, 
but in the meantime I've got a trade/service mark without actual use in 
commerce.  (In my own work we actually do intend to use - our trademark 
attorney would come after us if we didn't - but I can't say that of 
everyone.)  There's an interesting additional twist which is that after 
the five year first period of US trademarks (and the filing of the right 
papers and fees) the US mark becomes incontestable.  Even domain names 
don't attain the status of "incontestable".

In the domain name space "use" is a very vague term.  Does it mean that 
a name actually has some RR records attached.  If that's "use" then most 
registrars would simply attach (as many do) a couple of MX records to 
every registered name (in addition to the obligatory SOA and NS 
records.)  Certainly "use" can not mean "website" because there are many 
uses of a name distinct from supporting the world-wide-web, which is 
merely one application out of many that are on the internet.  And in 
this era of security concerns is one obligated to have a DNS server for 
the zone that is willing to accept DNS query packets from any and all 

I've got a registered name that I prefer that only certain people even 
know about - behind it is a zone filled with names with resource records 
designed to stress DNS software - in fact I have yet to see a DNS 
resolver that can handle all of the cases.  This zone is present to 
support software testing.  Anyone expecting to interact with those names 
will be sorely disappointed (especially as there is a lot of buggy DNS 
client software out there.)  Does that constitute "use"?

In many other areas - such as the acquisition of land or a painting, 
even a painting beyond copyright, there is no obligation of use of the 
land or to display the art.  In fact one of the touchstones of 
"ownership" is the power to say "no" (or, as art museums do, impose 
terms of use on visits to the  museum that forbid the making of copies, 
even copies of paintings that have long since fallen into the public 

Sure, I'd like to say 'I'm a refugee' or 'I'm a entrepreneur' and have 
that open the gates to the US National Gallery so that I can take home 
my favorite Berthe Morisot painting   That may sound absurd, but it is 
what I hear when I hear advocacy of some sort of hierarchy of privilege 
with regard to domain names.


On 6/30/19 4:36 PM, JOHN MORE wrote:
> Karl
> 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.
> John More
>> On Jun 28, 2019, at 8:03 PM, Karl Auerbach <karl at cavebear.com> wrote:
>>> On 6/28/19 2:36 PM, Evan Leibovitch wrote:
>>> 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:
>>>   * change their brand name to suit the available names (this has
>>>     happened more than once)
>>>   * agonize over whether to settle for a domain name using hyphens
>>>   * pay a lesser premium in a new TLD they don't know is fully reachable
>>>   * resign themselves to having a non-memorable (ie, shitty) domain and
>>>     using other strategies to lead people to them.
>> 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.
>> Your people want "brand names" - which I read as a synonym for "trademark" - and find that someone else has already registered it?
>> 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.
>> Athol Fugard wrote that "the saddest words ... are 'too late'."
>> 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?
>> (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.)
>> (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.)
>> 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.
>> (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"?)
>> 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.
>>     --karl--

More information about the At-Large mailing list