NCC DNSO elections - Question 1
Subject: Re: [1] NCC Q&A Session with Candidates for DNSO Board
Date: Fri, 08 Sep 2000 14:18:55 -0400
From: James Love <love@cptech.org>
To: YJ Park <yjpark@myEpark.com>
CC: pdeblanc@usvi.net, rweikers@home.com, Jonathan Cohen
<jcohen@shapirocohen.com>, ncdnhc-discuss@lyris.isoc.org
YJ Park wrote:
> Dear DNSO Candidates and NCC members,
> First, could you expound your position on domain names in conjunction
> with free speech right and trade mark?
>
> 1. "Free Speech Right vs Domain Name"
> 2. "Trade Mark vs Domain Name"
>
> It would be much appreciated to unfold your position first on the
> free speech right itself which can be subjectively defined therefore
> your views as would-be-Board can be very critical in the ICANN process.
First, thanks to Peter de Blanc for his statements to the list on this
topic.
It is my view as well that there are free speech issues in domain
names. There are of course many examples of cases where domain names
are used to promote criticism, approval, parody, and to organize. While
the original purpose of the DNS may been more narrow, people have found
name domains to be important in terms of calling attention to web site
content, making statements with the domain name itself, or making the
relevance of the domain more obvious to others. The Washington Post has
a long article today about the issue of domain names that express
critical views of company, brands or company executives, and how firms
seek to acquire these domains in order to make criticism more
difficult.
(http://www.washingtonpost.com/wp-dyn/articles/A30525-2000Sep7.html).
The right to criticize, and to have that criticism heard, is part of the
right to speech. There are also many other free speech issues in domain
names, including, for example, the issues of parody, or to create a
domain name used to organize. There are also issues such as the right
to use a domain name in comparative advertising, which is part of the
right to commerical speech.
As some have pointed out, it is one thing for someone to assert or
want a right, and another to actually have a right. For better or
worse, ICANN is involved in trademark policy, through the UDRP, plus
whatever restrictions it will impose on new TLDs. I am concerned about
the way that the UDPR works. There are bad decisions, such as the
decision in kwasizabantu.org, where the UDRP WIPO panel took away a
domain, and said:
"The admitted nature of the use of the domain names
... includes alternative views and indeed critical
views concerning ... [KwaSizabantu] and its activities.
The Panel holds such activity amounts to tarnishing the
activities associated with the trademark or service
mark "KwaSizabantu" ... . Therefore, ... [Rost] does not
establish any rights or legitimate interests ...
Another example of where the UDRP panel dismissed critical speech as a
legitimate right was the CSA-Internatinal.net case, where the panel
said:
. . . Respondents attack and criticise the Complainant
and its staff . . .they are not using the domain names
in connection with a bona fide offering of goods or
services . . . Examination of Respondents' web pages
clearly show that they are using their domain names to
attract persons to their sites for the purpose of
publicly attacking the Complainant and members of its
staff and pleading its case in relation to a dispute
between themselves and the Complainant . . .
Respondents claim to rights and legitimate interests is
essentially based on a claim to freedom of speech and,
expression of opinion, but that right does not require
the use of Complainant's trade marks in the domain
names for that purpose.
There are, of course, decisions by UDRP panels that go the other way,
such as the decisions in the scientologie.org and
bridgestone-firestone.net cases.
In my opinion, ICANN should amend the UDRP to clarify and broaden the
public's free speech rights. If the ICANN policy would insist that this
a right, then people would have the right, at least in terms of the
UDRP.
With regard to trademarks, I do support the notion that trademark owners
should be able to protect their legitimate trademark rights in the
domain name space. However, my own view of the legitimate rights are
different than some of the UDRP panels. For example, while I can
understand how United Airlines would assert a right in united.airlines,
I would not expect United Airlines to have broad rights to the word
United, which is a generic, and which can be used by many other
businesses. I don't think that owners of trademarks for unique words
like Exxon or Verizon should be permitted to prevent people from using
their name for domains such as verizonreallysucks.com or exxon.union.
And, I think that competitors should be able to use trademarks for a
variety of legitimate competitive reasons, including comparative
advertising. In general, trademark rights should be limited in a
variety of ways, and the legimate rights to use a trademark in a domain
name will depend upon the context, the line of commerce and the use.
In my opinion, a large expansion of the TLD space will solve many of the
problems concerning confusion. If we had a .soccer and a .bible, we
would not have to choose between the two uses for the word Corinthians,
for example. ICANN should "solve" the trademark disputes in a positive
way by expanding the name space, rather than creating artificial
scarcity.
> Secondly, there have been some efforts in NCC to form a WG
> so as to give inputs from the perspective of "Domain Names"
> in UDRP implementation process as WIPO contributed to.
>
> If you are a DNSO Board member, are you going to support this?
> If so/ or if not, could you specify why and how accordingly?
I support the idea for a working group that would expand the current
UDRP policy statement to expand and clarify the public's rights to use
domain names. I would strongly support the idea that this would be done
to protect free speech rights.
> Thank you for your cooperation.
>
> YJ Park
Thanks for YJ for doing this.
Jamie