Sunday, April 12, 1998

Sun Apr 12, 1998 10:55:22 AM moderator_mark_r:Welcome to today's seminar. My name is Mark, and I am the moderator of this seminar. I am a Swiss lawyer and currently enrolling an LL.M. program at Harvard University. You might give a short introduction of yourself when entering the seminar, too. This makes the seminar more personal and allows a better interplay between lawyers and non-lawyers.

Sun Apr 12, 1998 10:56:01 AM moderator_mark_r:Some words about process. When you are typing a long contribution, please announce that in advance or send it in several pieces. If you are answering to a person, mention his/her name before, as there might have been other contributions while you were typing.

Sun Apr 12, 1998 11:00:02 AM sally_r:I am Sally, and I am a grateful independent, early retired scholar from far west Texas. I live on the eastern edge of the Chihuahuan Desert, just north of Mexico. The Internet is extremely important to us here in our wonderful, but geographically isolated, home. I've little substance to add, delightedly overwhelmed with material; I shall mostly 'listen'. My basic delight is to experience the law in relation to the history of ides, epsecially in the US. I shall try to follow process.

Sun Apr 12, 1998 11:02:08 AM moderator_mark_r:Hi Sally. Nice to have you here. You seem to be the only person attenting the seminar, so you cannot just listen. Did you have a look at the materials on Domain names?

Sun Apr 12, 1998 11:05:35 AM sally_r:There were only two of us last week. Yes, I have taken a 'look' at the material on domain names. "look' is the operative word. I enjoyed the 'academic' articles included in resources this week. I also injoyed, and cannot seem to relocate, a criticsm of the way policy seems to be evolving in dealing with changes, particularly with NSI (?) - Do I remember correctly that there is real concern that the US is quietly throwing major roadblocks in the internationalization effort to evolve 'ownersh

Sun Apr 12, 1998 11:06:54 AM moderator_mark_r:The U.S. plan to revise the domain name system essentially focuses on two modifications of the current regime:

Sun Apr 12, 1998 11:07:02 AM sally_r: ip' of the net?

Sun Apr 12, 1998 11:07:28 AM moderator_mark_r:1. Creation of five new top-level-domains

Sun Apr 12, 1998 11:07:44 AM moderator_mark_r:2. Privatization of the management and administration of the domain name system, with competing registries.

Sun Apr 12, 1998 11:07:57 AM moderator_mark_r:What do you think about that?

Sun Apr 12, 1998 11:11:25 AM roy_k:how would competing registries work? it seems to me that the rationale behind a registry is centralization of information, and that that is undermined by having competing registries. what is the benefit of multiple registries?

Sun Apr 12, 1998 11:12:33 AM sally_r:I think that the 'how' to assign domains continues to be challenging. Comments about, simialr complex names and the way they have been adminsitered under trademark law seem important. I answer Mark-R

Sun Apr 12, 1998 11:13:33 AM moderator_mark_r:The US hope that administration by competing registries will be cheaper and more efficient. As you can register the second level domain in each register, there is no need for a central control.

Sun Apr 12, 1998 11:14:04 AM sally_r:What about hoarding and recycling?

Sun Apr 12, 1998 11:15:04 AM sally_r:Mark - Will you define 'competing registries'?

Sun Apr 12, 1998 11:15:51 AM moderator_mark_r:Sally. To come back to your initial comment. What is fascinating with the Internet and the Domain names is the developent over the time. In the early Internet there were no discussions about Domains. All these aspects have become actual only because the Internet has become a marketplace.

Sun Apr 12, 1998 11:16:10 AM moderator_mark_r:Sally, I will answer immed.

Sun Apr 12, 1998 11:17:41 AM moderator_mark_r:Competing means that private persons can apply to handle a registry and that the one (the most competitive) will be granted the right to do so

Sun Apr 12, 1998 11:19:01 AM moderator_mark_r:There will be different persons handling the registries. This other than today, where only one person (NSI) does it.

Sun Apr 12, 1998 11:20:46 AM moderator_jack_l:Actually, I am also a bit unclear as to how these registries will compete -- they will have different toplevel domains (like www1, www2, and www3?)

Sun Apr 12, 1998 11:20:52 AM sally_r:Mark: OK I am slowy joining in - and the registries are essentially 'first come, first serve'? In terms of trademarks and domain names, is there not little need to define what can and annot be until it 'comes up', ie, themarketplace itself is the best 'overseer' of fairness? I did look at the cases, and I understand that there is need for definition, but how much? and what do competing registries do here?

Sun Apr 12, 1998 11:21:51 AM moderator_mark_r:Jack: Right. Each registry will have a top-level (like .....firm, club)

Sun Apr 12, 1998 11:22:56 AM roy_k:there seem to be two different issues here: one is competing for registries (i.e. private entities bid for the right to run one) and the other is competition among the registries themselves. the question for me is what is to be gained from the latter.

Sun Apr 12, 1998 11:22:56 AM moderator_mark_r:Sally. That is one of the open issues. Before a business name or a trade mark are registered, the authority who does the administration usually checks whether there are already same / very similar names/marks in use. If such is the case, the registration usually will be denied.

Sun Apr 12, 1998 11:23:08 AM sally_r:In the hypothetical (and so many cases), NSI arbitrarily gave him '30 days', and evidently NSI has been poorly structured to answer do multiple registries fix that?

Sun Apr 12, 1998 11:23:39 AM sally_r:And NSI does 'no resaarch'?

Sun Apr 12, 1998 11:24:03 AM moderator_mark_r:Sally. The question is now, whether there should be such a check before rigistaration of domains, too, or whether the first serve should be maintained.

Sun Apr 12, 1998 11:25:29 AM sally_r:Mark - And whether domains should be connected at all to trademarks? Nationally? Internationally?

Sun Apr 12, 1998 11:25:37 AM moderator_mark_r:Roy, I agreee. There were times NSI had problems to handle all the application. Maybe things like that would become better - or not (Example AOL)

Sun Apr 12, 1998 11:26:19 AM moderator_mark_r:Sally: Registries do not research.

Sun Apr 12, 1998 11:26:27 AM sally_r:mark-r - and with competing registries the element of competition might help?

Sun Apr 12, 1998 11:27:04 AM moderator_mark_r:Sally. Actually, there are no "international Trademarks". A mark needs to be registered in each country to be protected.

Sun Apr 12, 1998 11:27:20 AM sally_r:Mark-r: But ihas that not been a complaint? I think I remeber something about "willful ingnorance'...

Sun Apr 12, 1998 11:27:53 AM moderator_mark_r:Sally: NSI only intervenes (as in the hypo) if a trademark owner deposits a complaint with NSI.

Sun Apr 12, 1998 11:29:03 AM moderator_mark_r:Sally: Could you precise "the willful ignorance"

Sun Apr 12, 1998 11:29:54 AM sally_r:mark-r. So we have two levels of questions? First, how to fairly 'give out' domains (as 800 numbers); second: What to do when there is a dispute? and who - privately or whatever, makes the decisions?

Sun Apr 12, 1998 11:30:40 AM moderator_mark_r:Right. Lets first discuss the "how to give out"

Sun Apr 12, 1998 11:31:26 AM moderator_mark_r:I think it would be worthwile to give out only succh names that do not interfere with existing business names/trademarks

Sun Apr 12, 1998 11:31:55 AM moderator_mark_r:A respective research can be done electronically and without big costs

Sun Apr 12, 1998 11:32:07 AM sally_r:mark-r: I shall try, but I am afraid I cannot give you a citation except to tell you that I read it in one of the academic overviiews which worked to demonstrate how trademark law does not 'fit' with evolving net structure; how limited NSI has been in resolving disputes.

Sun Apr 12, 1998 11:32:08 AM moderator_mark_r:What do you think?

Sun Apr 12, 1998 11:33:28 AM moderator_mark_r:Sally: You might think of the case where NSI gets informed that a Domain violates a Trademark. There was the question whether NSI becomes an infringer (contributory) then. Howverer, courts mostly denied that.

Sun Apr 12, 1998 11:34:01 AM sally_r:I think that NSI has not done this??? And there is the Dell problem (as metaphor) - many companies have Dell in their marks. Under tademark law, there are levels (wrong word), but not with domains...

Sun Apr 12, 1998 11:35:20 AM moderator_mark_r:Sally One important difference between trademarks and domain names consists in the fact that in the trademark area, competing uses are possible (i.e. same mark for different uses). There are possibilities to do similar with domain names, but such solutions seem not to be used very often:

Sun Apr 12, 1998 11:35:44 AM moderator_jack_l:And what if under the new regime you had and and they were two different businesses? Wouldn't that mess up the identification function of TM?

Sun Apr 12, 1998 11:35:51 AM moderator_mark_r:1. Use of a referral homepage (this means that the disputed Domain becomes the name of the homepage, which refers/links to all domains using the name with certain modifications) 2. Use of descriptions of the products/services offered in the domain name: / /

Sun Apr 12, 1998 11:35:51 AM sally_r:mark-r - So the research can be done mechanically and simply, but how are disputes resolved - duration, complications, etc?

Sun Apr 12, 1998 11:37:26 AM sally_r:mark-r: wow. sounds challenging - possible - and thorws the problem into the market place for resolution?

Sun Apr 12, 1998 11:37:41 AM moderator_mark_r:Sally: You have similar procedures now in trademark law. The registring authority will deny a new brand if it is obviously similar to an old one. In case of doubts, there needs to be a lawsuit.

Sun Apr 12, 1998 11:38:45 AM moderator_mark_r:Sally: Its not a solution for all, but would make available more domain names

Sun Apr 12, 1998 11:38:57 AM sally_r:But is there not a way, agian in the Dell example, for similar names to be used, if they do not confuse, dilute or blur? Kind o0f like you suggest in ht referral homepage idea?

Sun Apr 12, 1998 11:39:42 AM moderator_mark_r:Jack: In your example, there is indeed a risk of confusion. This risk probably always will exist to a certain extent.

Sun Apr 12, 1998 11:41:07 AM sally_r:Mark-R - My reading delight so far has been to see how little, really, is actually fodder for the law - in the history of the law???Have I understood the general thread of history when I say this? As starting with Holmes and Brandeis?

Sun Apr 12, 1998 11:42:16 AM moderator_mark_r:The new top levels will help to identify the services offered

Sun Apr 12, 1998 11:42:22 AM moderator_jack_l:This new regime actually seems pretty good; let's say it adapts existingTM as perfectly as possible. What are the best arguments, though, for why TM should NOT apply to domain names?

Sun Apr 12, 1998 11:43:22 AM roy_k:one issue is geographic specificity, which exists in trademark, but is obviously absent for the net.

Sun Apr 12, 1998 11:43:27 AM moderator_jack_l:Sally: You are right especially with respect to trademark; misappropriation is even more ephemeral!

Sun Apr 12, 1998 11:43:32 AM sally_r:jack-I: internationality - lack of clear precedent in dealing with international issues???

Sun Apr 12, 1998 11:44:56 AM moderator_mark_r:Sallly: Can you explain more what you mean with "foodder for the law"

Sun Apr 12, 1998 11:46:19 AM moderator_mark_r:Roy: At least to a certain extent, the international problem has been solved with the national leverls (.ch, de). However, this is not true for com etc.

Sun Apr 12, 1998 11:47:01 AM moderator_jack_l:These are good points. Do you think there is an argument that the unique "net culture" makes a difference?

Sun Apr 12, 1998 11:47:30 AM roy_k:right - i was actually referring to the trademark relevant for, say, Boston, which might prevent use of a name on the web, even though the origin might be in san francisco.

Sun Apr 12, 1998 11:48:27 AM sally_r:mark-r: there seems to be trend, especially in American law, to settle disputes through the courts as little as possible. The examples I used from last week were the NFL v Deleware - Deleware had to put a discaimer, but there were no damages, etc - let the marketplace take care of things - laizzez fairre...? I f it does not, legislation needs to be next step - only in clear fraud, and to help 'define' is the law appropriate. I am not being clear, but it has been really educative for me to see h

Sun Apr 12, 1998 11:49:46 AM sally_r:jack-i: yes - net.culture seems to be 'new', moving way far from nationalism of any kind -

Sun Apr 12, 1998 11:50:37 AM moderator_mark_r:Sally: To the contrary, I believe that the US are the most litiguos society in the world - this is proven statistically. However, lawsuits take a long time - and here the market intervenes: It is usually cheaper to settle at an early moment instead of living with uncertainites for a long time

Sun Apr 12, 1998 11:51:08 AM sally_r:ow l have misunderstood the 'use of courts' and litigation - as a layman

Sun Apr 12, 1998 11:52:57 AM moderator_jack_l:I interpreted Sally's comment to mean that there is very little "law" to apply to Intellectual Property disputes, i.e. there is very little precedent or guidance from the legislature for courts to look at. Is this what you meant Sally?

Sun Apr 12, 1998 11:53:08 AM sally_r:I do underasstand that statistic! But my reading suggests that, in reality, there is limited defining things by courts. As a matter of fact, such paradox has confused, but everything I have read so far suggests that the cases use very clear and very limited definitions to 'decide' blame, etc.

Sun Apr 12, 1998 11:54:25 AM sally_r:jack-i: yes. I apologize for such lack of clarity. I am afraid I waste your time, becasue I've not read carefully enough to give citations to 'explain' what I attempt to say I understand.

Sun Apr 12, 1998 11:54:57 AM moderator_mark_r:Sally and Jack: That is my opinion, too. The US courts and the legislator still are attacvhed to a case law system - even though there would be the trademark act.

Sun Apr 12, 1998 11:55:47 AM moderator_mark_r:Sally: it is a pleasure to discuss with you - that is why we offer the seminars. Did you like it?

Sun Apr 12, 1998 11:55:48 AM moderator_jack_l:Not at all, Sally! Your (and Roy's) questions and comments have been really stimulating.

Sun Apr 12, 1998 11:55:52 AM sally_r:Can you suggest readings for me to more clearly differentiate between 'case law' and ....

Sun Apr 12, 1998 11:57:17 AM roy_k:see you next week, thanks for your time.

Sun Apr 12, 1998 11:57:41 AM sally_r:-jack-i thank you for your generosity. I have used the word 'thrilled' in past posts, and I choose it carefullky to describe how neat it is to read, to shatter many previous misconceptions. but I cannot do it and think thorugh very well. I shall be lots less generous with my 'lawyer jokes' after this experience!

Sun Apr 12, 1998 11:57:50 AM moderator_mark_r:Sally: You might try any book that compares different naional legal systems - or a legal history book that relates to Europe and the US

Sun Apr 12, 1998 11:58:44 AM sally_r:Wow. I am a bit of an educational comparativist, and I di not consider that - over me head, I am, but I appreciate and I shall try.

Sun Apr 12, 1998 11:59:24 AM moderator_mark_r:I will leave now. Sally, I hope you had fun

Sun Apr 12, 1998 11:59:25 AM sally_r:Both of you: And I shall also go back anbd look at the nice overview on misappropriation - I obviously ned to.

Sun Apr 12, 1998 12:00:57 PM sally_r:mark-r: Yes, resoundingly. I hope that there is way this kind of thing can continue. for two major reasons. Equality of opportunity for so many of us. 2. and in fashion so those of us who are not really qualified to 'go for the bar' or whatever certificate - can still become 'educated' Thank you both.

Sun Apr 12, 1998 12:01:46 PM moderator_jack_l:Quickly: well what we mean by case law is judicial opinions deciding cases; as opposed to laws passed by congress.

Sun Apr 12, 1998 12:02:25 PM moderator_jack_l:bye!