Number: 392

                                             )
                                             )
Request for Comments                         )       Docket No.    
on the Registration and Administration       )       970613137-7137-01
of Internet Domain Names                     )
                                             )

To: Department of Commerce

AND NETACTION

DOMAIN NAME RIGHTS COALITION

Kathryn A. Kleiman, Esq., President

FLETCHER, HEALD & HILDRETH, P.L.C.
1300 North 17th Street, 11th Floor
Rosslyn, Virginia 22209
(703) 812-0424

Michael T. Doughney, Vice President
Harold Feld, Esq., Secretary
Mikki Barry, Esq.
Robert Cannon, Esq.

NETACTION
Audrie Krause, President

August 18, 1997

                                             )
                                             )
Request for Comments                         )       Docket No.    
on the Registration and Administration       )       970613137-7137-01
of Internet Domain Names                     )
                                             )

To: Department of Commerce

Introduction

The Association for the Creation and Propagation of Internet Policies, Inc. (A-TCPIP) and its working group the Domain Name Rights Coalition ("DNRC") welcomes this opportunity to submit comments to the Department of Commerce and the Interagency Task Force on the current problems regarding Internet Domain Name registration and administration, and possible solutions to the problem. A-TCPIP is a public interest organization which has been working on issues of domain name registration and administration for several years. A-TCPIP represents the interests of entrepreneurs, Internet service providers, small businesses and individuals, and its Board of Directors includes Internet pioneers Michael Doughney, co-founder of DIGEX, a large Internet Service Provider in Beltsville, Maryland, and Mikki Barry, co-founder of InterCon Systems Corporation, the earliest manufacturer of Internet connectivity software for the Macintosh platform in the 1980s. Its president, Kathryn Kleiman, served on the State Department's Working Group on Domain Names in 1996, and the organization submitted extensive comments in response to the International Ad Hoc Committee's Draft Report in 1997. The website of A-TCPIP is located at http://www.domain-name.org.

NetAction is a non-profit public interest organization whose mission is to promote effective grassroots campaigns linking online activists with other organizations, training online activists in effective organizing strategies, and educating the public, policy makers and the media about technology-based social and political issues. NetAction assists those who are not "online" to accomplish vital politically and socially beneficial causes by using the power of online technology. The website of NetAction is located at http://www.netaction.org.

A. Appropriate Principles

The Department of Commerce sets out six important principles which the A-TCPIP and NetAction agree are appropriate and to which it will respond individually below. However, A-TCPIP and NetAction does not find these principles to be complete and strongly urges the addition of one more. As a seventh principle, we urge the Department of Commerce and the Interagency Task Force to adopt the principle that the Internet is a medium of communication in which commerce takes place, not a medium of commerce. Added to the list set out in the Notice of Inquiry, this principle might read:

g. The Internet is a medium of communication, over which noncommercial and commercial speech takes place. Policy frameworks must protect all forms of communication which take place on the Internet, and self-governance mechanisms must include representatives of the full range of the Internet community, including schools and libraries, large and small companies, Internet Service Providers, individuals and public interest groups.

Too often in recent policy discussions, the A-TCPIP and NetAction have heard references only to the Internet as a medium of electronic commerce. A-TCPIP and NetAction believe that the Internet is probably the most powerful means of communication ever devised, opening "the marketplace of ideas" to millions of people around the world for the first time in history. That "marketplace," however, is not solely one of commerce. Internet policies whose sole goal is the protection and fostering of Internet Commerce will destroy the "ideas," resulting in the destruction of the current and thriving Internet community. The result could well be the stifling of individual thought and opinion, and the reduction of the "marketplace of ideas" to an online shopping mall.

Many observers of the Internet recently commented on the diversity and importance of noncommercial Internet speech. Price Waterhouse reviewed all usage on the Internet and in June released a report of "Top Web/Internet Activities." It found that the primary use of the Internet is research, closely followed by electronic mail. Shopping finished a far last:

Activity Time Spent

Research 43%
E-Mail 34%
Games 9 %
Online Mag/News 5 %
Online Banking 2 %
Two Way Voice 1 %
Shopping 1 %

Cyberatlas, http://www.cyberatlas.com/usage_patterns.html, accessed on August 4, 1997.

In his most recent letter to AOL's 8 million subscribers, Steve Case, President of America Online, wrote about the importance of interpersonal communication:

As you know, cyberspace is no longer a distant place -- it's a growing part of the everyday life of tens of millions of Americans. And it promises to become as important in our lives as the telephone or the television.

For families and children, this new medium is tremendously empowering. In addition to learning about a wide variety of topics, they can interact with a wide variety of people, from many walks of life. The people aspect is important. We've learned that this medium is not just about content, but also about people. The Internet is creating an electronic "melting pot" that fosters a broader and deeper sense of community.

A Community Update from Steve Case, August 4, 1997.

The Framework for Global Electronic Commerce, a document dedicated to the electronic commerce elements of the Internet, acknowledges the noncommercial uses of the Internet and their tremendous importance:

Students across the world are discovering vast treasure troves of data via the World Wide Web. Doctors are utilizing tele-medicine to administer off-site diagnoses to patients in need. Citizens of many nations are finding additional outlets for personal and political expression. The Internet is being used to reinvent government and reshape our lives and our communities in the process.

A Framework for Global Electronic Commerce, July 7, 1997, http://www.iitf.nist. gov/electronic_commerce.htm. BusinessWeek recently featured Internet communities and the traditional and continuing importance of the speech people create for their friends and communities to read and respond to. See BusinessWeek, "Internet Communities," May 5, 1997 (cover story).

Perhaps the most enthusiastic endorsement of the Internet as a medium of communications has come from the courts, including the Third Circuit Panel in Pennsylvania, and the Supreme Court, who reviewed and set aside the Communications Decency Act, ACLU v. Reno, 929 F. Supp. 824 (E.D. PA June 11, 1996) affirmed, __ US __ (June 26, 1977).

Judge Dalzell concluded his opinion for the Third Circuit Panel by stating,

It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country and indeed the world has yet seen. The plaintiffs in these actions correctly describe the "democratizing" effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-Federalists may debate the structure of their government nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day Luthers still post their theses, but to electronic bulletin boards rather than the door of the Wittenberg Schlosskirche. More mundane (but from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lovers, or fly fisherman . . . [T]he Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion. Id. at 881-83.

Usage of the Internet will likely be determined in a similar manner to usage decisions made by consumers of another technological medium, the telephone. Individuals use the world wide telephone networks for personal calls, as well as to initiate or complete commercial transactions. However, as with the telephone, usage of the Internet is overwhelmingly personal, with only a portion devoted to commerce.

If the Department of Commerce seeks the continued expansion of the Internet, its users must be allowed to engage in political debates and parodies, to be proud personal publishers of websites, and to open new businesses with the ease and speed they can today. Burdening the Internet with digital copyright and digital trademark rights that are far broader in cyberspace that in physical space and creating new international law without the input of duly elected or appointed governmental groups, will crush the diverse community and the vibrant ideas that are the basis for the Internet's explosive growth, and leave the Internet as a virtual shopping mall, and ultimately a ghost town.

The A-TCPIP and NetAction will now respond to the other principles proposed in the Notice of Inquiry.

a. Competition in and expansion of the domain name registration system should be encouraged. Conflicting domains, systems, and registries should not be permitted to jeopardize the interoperation of the Internet, however. The addressing scheme should not prevent any user from connecting to any other site.

A-TCPIP and NetAction agree with this principle.

b. The private sector, with input from governments, should develop stable, consensus-based self-governing mechanisms for domain name registration and management that adequately defines responsibilities and maintains accountability.

Although A-TCPIP and NetAction agree with the principle, we are concerned that the many different readings of this principle might lead to misinterpretation and unwarranted claims of support and authority. The governance of the Internet must be drawn from a group representing the diversity of Internet communication providers and Internet speakers, including Internet Service Providers, telephone companies, universities, Internet public interest groups, small and large businesses offering goods and services online, individuals, schools and libraries. Only this very broad definition of "private sector" is sufficient to provide the basis for a representative self-governance model. We note that the IAHC did not provide such representation when the Internet Society hand-selected a narrow group of people -- engineers with long experience on the technical issues of managing the Internet and lawyers representing the world's largest trademark owners. Entire communities of the Internet were missing from the decision-making body and their absence was reflected in the outcome. Allowing broad public comment alone is insufficient -- Internet decision-makers must be a broad-based group.

c. These self-governance mechanisms should recognize the inherently global nature of the Internet and be able to evolve as necessary over time.

The way this principle is phrased, it sounds almost un-American to disagree with it. Accordingly, A-TCPIP and NetAction propose some alternatives to this principle which may open the way for further discussion. A variation, which opens discussion, is:

Should Internet governance and Internet policy-making take place primarily or exclusively at the international level?

To this question, the A-TCPIP and NetAction respond that if International law is chosen to govern the Internet, then traditional methods of negotiating that law must remain as the basis for decision. Like the global telephone network or other global telecommunications systems, the Internet has aspects that are both domestic and global. Domestic groups should negotiate and form positions on domestic issues, and then duly elected or appointed representatives of other country's governments or regions should be charged with negotiating international Internet issues. Creating the equivalent of a North American Numbering Council for the Internet will allow the development of policies suited to local needs and concerns. This model is discussed in greater detail in Question B(4), below.

The A-TCPIP and NetAction note that the Memorandum of Understanding ("MoU") regarding Global Top Level Domains is an example of bypassing traditional governance structures and the protections they provide to smaller voices seeking to participate in policy debates. The U.S. State Department had fewer than two weeks to prepare for the ITU meeting at which the Memorandum of Understanding was approved by the ITU Council. Thus, the State Department had only a fraction of the time necessary to figure out a response and reached out to its ITAC telecommunications advisory committee for input. Under the too-tight circumstances, the State Department did the best it could, but the ITAC advisory committee was comprised of the largest telecommunications companies, many with Internet presences, but not representative of the diversity of voices and needs of the American Internet Community. Only later, after the ITU meeting, did the State Department learn of the tremendous opposition to the MoU in the United States, and of the controversy and cloud under which the MoU was created.

International Internet policy must provide the same checks and balances as other areas of policy. Time, open public participation, and wide-spread notice of proceedings -- such as the one in which we are engaged today -- must be the norm, not the exception. Those policies which have been forced through in a manner which bypasses the procedures and protections of traditional policy-making mechanism -- including the MoU and the arbitration rules of WIPO -- must be stopped until Internet communities domestically and internationally have the time to review and respond. Policymaking should not be limited to those companies with the attorneys to monitor the situation full-time and the funds to travel to Geneva on two weeks notice.

d. The overall framework for accommodating competition should be open, robust, efficient, and fair.

The question, on its face, is impossible to disagree with, but the A-TCPIP and NetAction seek clarification about what these words actually mean. As set out above, A-TCPIP and NetAction agree fully that the Internet governance system must be one run by the Internet community itself -- with all aspects of the Internet community represented. This question, however, raises the issues of openness and fairness, which is an issue that runs not only to the process of fair and open debate but also to having fair and impartial decision makers.

As developing today, the groups deciding key aspects of Internet policy are not unbiased and are not impartial. We note with regret that after searches at the State Department and in the Department of Commerce, the A-TCPIP and NetAction cannot find any group other than the U.S. Patent and Trademark Office that is interested in the proceedings at the World Intellectual Property Organization. Perhaps on its face, the connection between the PTO and WIPO seems logical, but at its root, the connection will cause severe problems for the Internet. The questions being decided at WIPO, in Geneva, on September 1 and 2, run to the heart of the domain name registration and administration issue: how a domain name might be taken away from a domain name owner and given to a trademark owner. The issue involves not just trademark law, but the limits of trademark law and the continuing right of all Internet users to use ordinary, dictionary words to form the names of new companies, to name community organizations, and ultimately to create new Internet addresses for all purposes.

Both WIPO and the PTO make the assumption that a domain name, standing alone, is akin to a trademark. The A-TCPIP/DNRC strongly disagrees. A domain name is a technical address. Although its use may cause trademark concerns, its mere existence does not. The WIPO and PTO interpretations of these issues clearly create a completely new intellectual property right, without the benefit of legislative or judicial action. This outcome would definitely have a "chilling effect" on all Internet speech, commercial as well as non commercial.

Clearly the PTO and WIPO have a vested interest in the outcome of this matter, as the charter of both organizations is the protection and expansion of intellectual property rights. Accordingly, both groups are appropriate advocates, but inappropriate decision-makers. Only a body with fair and impartial decision makers -- or a range of decision makers who protect not only intellectual property rights, but also free speech protections and the limits of traditional trademark rights -- may properly create a framework that is open, robust, efficient and fair. The A-TCPIP and NetAction strongly urge the Department of Commerce, the Interagency Task Force, and the U.S. State Department to establish a broader input to the U.S. position on all WIPO Internet-related meetings.

e. The overall policy framework as well as name allocation and management mechanisms should promote prompt, fair, and efficient resolution of conflicts, including conflicts over proprietary rights.

As in d, above, this is a question which is impossible to disagree with on its face and into which broad authority may inappropriately be read. In fact, the A-TCPIP and NetAction understand that the Patent and Trademark Office is closely reading these comments for an endorsement of its position at the World Intellectual Property Organization. We urge that the Patent and Trademark Office not read any mandate to support its WIPO position from this broadly phrased question.

Everyone wants efficient resolution of conflicts, including proprietary rights, but not at the cost of free speech, due process or protection of smaller voices that would like to participate in the process. The fact is that there is no law -- domestic or international -- that equates the mere existence of a domain name with a violation of an intellectual property or trademark right. Allowing WIPO -- the harmonizer of IP rights worldwide -- to determine digital trademark rights not through an international treaty, but through a series of informal meetings led by the U.S. PTO, is a way to establish a clear set of rules, but not rules that are fair, impartial or preserving of the Free Speech protections so valued by Americans and the open communication protections of nations worldwide. We must not sacrifice cherished rights for economic efficiency -- and certainly not at this nascent stage of Internet growth!

Further, the WIPO/PTO position, even when viewed under a model of economic efficiency, fails to streamline the process in a number of instances. Those instances include questions on who prevails in a case in which multiple large trademark holders across multiple trademark classes, all wish the same domain name, issues concerning whether medium to large corporation trademark holders may prohibit others with identical names and marks from holding domain names in other TLDs (top level domains), and how to adjudicate disputes between

individuals who use a family name as a domain name, and a subsequent dispute by a small common law trademark holder. These are only a few of the many disputes that go unanswered by the WIPO policies, forcing WIPO arbitrators to create new "law" to govern disputes. The A-TCPIP/DNRC feels that randomly appointed WIPO arbitrators should not be formulating new international law, circumventing well established court procedures including choice of law and venue provisions that are currently in place worldwide.

As a counter example to the work at the PTO and WIPO today, we point to the digital copyright discussions. A group was assembled to write a report on how copyright protections should be expanded onto the Internet. The group held hearings, heard many voices, and accepted input from organizations, individuals and companies throughout the country -- who had ample notice of the proceeding and opportunity to respond. The results were then published in a draft form, the "Green Paper," which was then put out for another round of review and comment. In reviewing the Green Paper, academics, public interest groups and scholars discovered that issues of fair use of copyrights on the Internet, including the traditional uses of copyrighted material for personal and educational use had been all but abandoned. Pamela Samuelson, recent winner of the MacArthur Award for her efforts in this area, and Jamie Boyle were among the academics who fought loudly, and successfully for the limiting digital copyright on the Internet, and understood the importance of these limits for future Internet growth. As you know, the digital copyright issues went before WIPO last year -- and a treaty was negotiated by well-prepared member countries.

A-TCPIP and NetAction note that although the final version of the IAHC Report contained substantial portions of new material, including the creation of arbitration rules by WIPO. The final report was never put out for further public notice and, accordingly, much of what was adopted as "Internet consensus" had neither Internet comment nor review. Thus, given the lack of real process involved in the IAHC, the ITU, and the WIPO arbitration/challenge panel rules, few academics, public interest groups, small businesses and entrepreneurs know or participates in their processes.

f. A framework should be adopted as quickly as prudent consideration of these issues permits.

The operative words to this principle are "prudent consideration." A-TCPIP and NetAction submit that a more appropriate choice of words would be "democratic consideration" of the issues. Small groups acting for specific purposes can certainly provide prudent and even learned consideration of issues, but policy for a community requires the education, understanding and input of that community. Efficiency and democracy sometimes work at odds, and given the choice, we opt and urge the U.S. Government to opt for democratic processes and reverse the decisions made by the IAHC, ITU and WIPO in undemocratic processes.

B. General/Organizational Framework Issues

Introduction

As a preface to the specific questions below, the DNRC urges the Department of Commerce to focus on the meta-policy questions involved in the domain name issue and not to get bogged down in the nuts and bolts of the problem. The Department of Commerce and the US government is well positioned to make a valuable contribution to the situation by showing leadership concerning the Internet which it created and continues to support. There is a need now for resolution of policy issues on how we move forward to resolve these problems. If the Department of Commerce gets bogged down in solving the detailed problems of the network, instead of setting up a policy and organization which can competently address these problems, we will have gained little. On the other hand, if the Department of Commerce sets up the framework for current and future resolution of Internet policy, we will have gone a long way in resolving this and future issues.

1. What are the advantages and disadvantages of current domain name registration systems?

The advantages of the current domain name registration system run by Network Solutions, Inc., a contractor of the National Science Foundation, lie in the speed and efficiency with which domain names are issued on a first-come, first-served basis. NSI has made it easy for individuals, small businesses, community organizations and large corporations to register for domain names. It also provides informative assistance online to first-time applicants. Further, the names are issued on a first-come, first-served basis without a waiting period, pre-screening, a 30 day revocation period, or any other barrier to quick registration of domain names. Thus, websites for emergencies can be put up quickly; announcements of community organizations and events can be rapidly posted; and businesses have no delay in offering their services and products.

The disadvantage of the NSI domain name registration system for .COM, .ORG, and .NET is the NSI Domain Name Dispute Policy. This policy was adopted by NSI in 1995 to address the conflicts between trademark owners and domain name owners. It allows a trademark owner to challenge any domain name which uses the same word or words found in a trademark. NSI provides no evaluation of any trademark infringement -- only a straight comparison of the trademark word and the domain name word. If they match, then the domain name owner receives a letter asking it to produce its own trademark or consent to giving up its domain name for a transition period, or face suspension of its domain name. Under these circumstances, NSI effectively grants the trademark owners immediate injunctive relief without the due process which would normally protect the users of ordinary words in the English language. En masse, trademark owners have used NSI to assist them in abusing trademarks and overreaching any authority given them by virtue of their trademark, and suspending the domain names of individuals and companies who have created no confusion and no harm to the trademark owners except using common words and registering domain names first. Suspension has been sought for words including "Roadrunner," "pony," "prince," and many, many others, where there is no infringement and no likelihood of confusion, just a shared use of terms. In the physical world, a trademark owner seeking an injunction to stop a new business from using a word or phrase must seek a preliminary injunction from the courts and provide substantial evidence of likelihood of confusion. Thus, the first significant costs are incurred by the trademark owner. In cyberspace, a trademark owner sends a 32 cent letter to NSI with no proof of likelihood of confusion, the domain name is removed from use by the domain name owner, and the domain name owner must go to court and file for a Declaratory Judgement that it is not an infringer. The first significant costs are incurred by the domain name owner. Each week, the A-TCPIP counsels small businesses, entrepreneurs, and individuals who are faced with a fight they cannot afford against a large company or relinquishing the domain name under which their personal and political speech, or their business information is located. These problems would not be resolved by the current IAHC/ITU/WIPO proposals. In fact, they would become far more slanted towards large corporations who hold trademarks. People using common words, or worse still, their own surnames, would be assumed to have infringed if a trademark holder objects.

2. How might current domain name systems be improved?

Domain name systems would be improved by using democratic processes to create the policies, and allow the registrars to implement those policies and focus on what they do best -- the registration of domain names and the technical maintenance of the domain name system.

A-TCPIP and NetAction believe that the U.S. law currently provides more than adequate structure for these improvements. The Administrative Procedure Act, 5 U.S.C. Sec. 500-596, bars the National Science Foundation from assigning policymaking authority to private companies or individuals. Policymaking authority is vested in the government and its execution must follow democratic processes, including notice, comment, a decision on the record and accountability. The NSI Domain Name Dispute Policy was created in a corporate boardroom, behind closed doors, without notice, comment or appeal. Even with informal NSF approval, after the fact, the requirements of the APA were not followed, and this Policy must be set aside and redone in an open and public manner.

Further, A-TCPIP and NetAction support the introduction of fair market competition to domain names and believes that competition among domain name registrars will provide the best mechanism for improving service and inspiring technical upgrades. Future domain names systems must be competitive in reality, not just name. Control of domain name space by a single company, by a small group of companies, or by a conglomeration of special interests will strangle the development of the Internet and place too much power in the hands of a few. The CORE and the iPOC proposed by the IAHC and adopted by a tiny fraction of the Internet community provide this type of concentrated control and will serve only the interests of the fraction, not the overall Internet community. At the international level and domestic level, the domain name registration system can only be improved by repealing or ignoring the actions taken to date by a few individuals and starting anew in the creation of policies through democratic processes, such as this Notice of Inquiry.

3. By what entity, entities, or types of entities should current domain name systems be administered? What should the makeup of such an entity be?

A-TCPIP and NetAction urge the creation of an Internet Council ("IC") to be created under the Department of Commerce pursuant to the Federal Advisory Committee Act, 5 App. 2 Sec. 1-15. The IC should consist of representatives of the Internet community, and include schools and libraries, small and large businesses, small and large Internet Service Providers, Internet public interest groups, and consumer groups. The IC should be comprised entirely of private sector participants with Department of Commerce representatives serving in an advisory manner. Creation of the IC under the rules of the Federal Advisory Committee Act will provide the IC with an open and democratic structure for its operation: meetings must be announced in the Federal Register and other public notices, the meetings must be public, and the public must be allowed to participate. It is envisioned that the IC will hold public hearings to gain input on many of the issues which trouble the Internet today.

Further, the Federal Advisory Committee Act structure will provide accountability. Should it come to the attention of the press and the public that collusion is taking place within the IC, or that Internet policy is not be created by fair and open processes, then the public need not appeal to the individuals themselves (the situation which we have with the IAHC, who are also the iPOC). Instead, the public may report the irregularities or illegalities to the Department of Commerce for appropriate review, investigation and action.

The IC should be given responsibility for the commercial portions of the Internet that the National Science Foundation is seeking to relinquish without notice or hearing to private companies and individuals. While the technical administration assignments need not change, A-TCPIP and NetAction advocate the assignment of all policy making authority for the .COM, .NET and .ORG domain names currently vested with NSI, and all policy making authority for .US currently vested with IANA, to the Internet Council.

The IC also should serve as an advisory body to other government agencies looking into questions which involve or impact Internet usage.

4. Are there decision-making processes that can serve as models for deciding on domain name registration systems (e.g. network numbering plan, standard-setting processes, spectrum allocation)? Are there private/public sector administered models or regimes that can be used for domain name registration (e.g., network numbering plan, standard setting processes, or spectrum allocation processes)? What is the proper role of national or international governmental/non-governmental organizations, if any, in national and international domain name registration systems?

The appropriate model for determining policy for the Internet, including policy for domain name registration and administration, is a democratic one featuring not only open and public discourse, but fair and diverse decision makers. An appropriate model for the Internet Council is the North American Numbering Council ("NANC"), founded by the Federal Communications Commission on July 13, 1995, to advise the FCC on numbering issues, including the administration of the North American Numbering Plan and administrative numbering database. By regulation, broad diversity is a part of the NANC:

Because representatives from every sector of the telecommunications industry, as well as members representing NANP member countries, the states, and consumers, the Council's membership will be impartial and well-balanced.

FCC CC Docket No. 92-237, Released August 9, 1995, and accessed on August 15, 1997 at http://www.fcc.gov/ccb/Nanc.

The NANC reports to the Federal Communications Commission and operates under the rules of the Federal Advisory Committee Act. Its meetings are open and announced in the FCC's Daily Digest and in the Federal Register. Its membership is comprised of a diversity of interested parties -- both large and small -- and its tasks include creating the policy for administering and managing the telephone numbering database. In form and function, the NANC serves as a model for the proposed Internet Council.

It should be noted that the Internet Council proposed in Issue 3, above, would be different from NANC in several key ways. The proposed IC would report to the Department of Commerce, and it would have a much broader and diverse representation than the NANC needs all major sectors of the Internet community, including consumers, public interest groups, universities, and schools and libraries.

Further, the Internet Council and the Department of Commerce would provide an expert resource in assisting the U.S. State Department as it prepares the U.S. position for international conferences. The Internet Council would provide the State Department with informed and balanced input regarding the impact of proposals at the International Telecommunications Union, the World Intellectual Property Organization, the World Trade Organization and others.

5. Should generic top level domains (gTLDs), (e.g., .com), be retired from circulation? Should geographic or country codes (e.g., .US) be required? If so, what should happen to the .com registry? Are gTLD management issues separable from questions about International Standards Organizations (ISO) country code domains?

A-TCPIP and NetAction oppose retiring generic top level domains from circulation. Generic top level domains provide addresses for Internet speech -- both noncommercial and commercial -- which are not tied to a country code of geographic designation. For those speaking about democratic principles in countries that do not value democratic debates; for those participating in nonprofit ventures that span communities and countries, and for those businesses of all sizes seeking an international audience for their goods and services, gTLDs provide an excellent place to register.

Further, .COM, .ORG, and .NET should not be phased out or retired. These top level domains are ones in which many companies and individuals have registered and whose earliest users include the pioneers and pioneering entities of the Internet. A-TCPIP and NetAction support market competition, not forced phase-out, to attract new registrants to other top level domains. Full and open competition will foster the creation of registries which will cater to different communities on the Internet, and offer services and quality to rival those of existing registrars.

The A-TCPIP strongly opposes the requirement of geographic and country codes, but strongly supports the prudent development of country codes to give all Internet citizens a domestic option to the top level domains. The proper place to begin is at home. The United States has done a very poor job with the policy making, registration and administration of the .US domain name space. This space was assigned to IANA, and specifically to Jon Postel, for administration. As argued above, the concept that the National Science Foundation could delegate policy making authority over the .US domain name space to one individual -- however talented -- is a violation of the Administrative Procedure Act and anathema to democratic processes. The result of poor management of the .US domain name space is: few U.S. users know of its existence, domain names are allocated by state and then city code in a country where individual and business mobility is a valued feature of daily life, and domain names for cities and states have been assigned to companies with no affiliation or even proximity to the location.

The Internet Council would be the appropriate forum for the review of the .US allocation, and the creation of second level domains with .US that would serve the interests of grade schools (which are not allowed to register under .EDU because the domain is reserved for four year degree granting institutions), libraries, political organizations, citizen groups, individuals, and local, regional and national businesses. Question 14 addresses these new second level domain names in greater detail.

With a properly organized and attractive .US domain name space, considerable pressure would be removed from the top level domain because U.S. individuals, organizations and businesses will have a viable and attractive alternative. Further, U.S. entities will face fewer uncertainties in their Internet dealings because the policies, administration and management of the .US domain will operate clearly under the laws and protections of the United States.

6. Are there any technological solutions to current domain name registration issues? Are there any issues concerning the relationship of registrars and gTLDs with root servers?

Many of the intellectual property/free speech conflicts on the Internet flow from confusion over the basic purpose of the domain name. Domain names were designed to serve as mnemonics for IP addresses. Because of the lack of a good directory, the names themselves have become a poor substitute for that directory and are serving a function for which they were never designed.

The development of better search engines will greatly alleviate the pressure and conflict over domain names. A-TCPIP and NetAction support the development of a search engine that, when given a word or phrase, will search only the URLs of the Internet, the owners of Internet domains, and perhaps a subject description of websites or other Internet locations. What would then be returned to a search for, say, "teddy bears" is a list of links to the Vermont Teddy Bear Company, an organization of teddy bear collectors, an website of elementary school children working together across the country under the name "Teddy Bears," and other individuals, organizations and companies whose name or primary purpose involves Teddy Bears. The race for teddybear.com would be over -- and without the need for a singular winner.

The A-TCPIP and NetAction are aware of at least one such search engine currently under development and which should be commercially available within the next 90 days.

7. How can we ensure the scalability of the domain name system and address spaces as well as ensure that root servers continue to interoperate and coordinate?

This is the type of technological question which A-TCPIP and NetAction believe should be assigned to the Internet Council, proposed in Section 3 above. The Internet Council will include some of the leading engineers of the Internet, and have the resources to summon informed and expert input on this matter.

8. How should the transition to any new systems be accomplished?

In recent months we have seen action taken from a sense of hysteria and crisis, and A-TCPIP and NetAction believe that this action is wrong, short-sighted and will create problems for years to come. As discussed above, Internet governance system both in the U.S. and internationally must be based on democratic processes -- a system of notice, participation, decision making and appeal. Similarly, transitions must take place within the same framework: individuals, organizations and businesses on the Internet must have full notice of the changes, sufficient time to educate themselves about the challenges and opportunities of the changes, and adequate time to make the transition and adjust to it.

We note that the voices of hysteria in the digital copyright debate who urged immediate action without democratic processes were wrong. The digital copyright hearings and debates were robust and informative. The time for the writing of the Green Paper and White Paper (draft and final reports on digital copyright) allowed coalitions to form, academics to speak, and involved parties to review new issues and think through the application of old principles in the new Internet medium. Despite this delay, the Internet did not collapse, business did not come to a standstill, and growth of Internet usage did not slow. The Internet has proved astoundingly robust and self-repairing. It will not collapse tomorrow if the Internet community were to take the time to produce a best solution based on careful thought and consensus on questions of digital trademark, domain name disputes, and other important matters.

9. Are there any other issues that should be addressed in this area?

In some ways the ISOC/IAHC proposal sought to recreate the legal wheel of governance from scratch. However, a long history has gone before in the jurisprudence of the United States, one that ensures democratic discourse and participation. The lessons which the United States has learned are missing from the ISOC/IAHC proposal. Missing from the ISOC/IAHC proposal were fundamentals such as (1) Notice of a policy proceeding (2) true public participation and comment period (3) a decision on the record and (4) accountability.

While there was discussion of the formation of IAHC, there was no adequate notice of what IAHC would do (at first it seemed more like a committee that would research the matter, not a committee that would mandate its own resolution to such a complex international matter). In addition, notice in unique areas of the Internet is not adequate. Notice of events was posted on listserves such as Newdom, but everyone who has an interest in this matter is not on Newdom. Nor is everyone with an interest a member of ISOC or associated with IANA or the IETF. In order to have a truly democratic participation, there must be true notice of policy making proceedings, such as through the Federal Register plus online postings.

There was no true public participation and there was no decision on the record. Although, IAHC did request comments on its proposal, there was only a short period before IAHC released its final proposal and there was no indication that IAHC reviewed the comments, no sign of how it came to its decisions, no rationale for rejected arguments, and no explanation for accepted arguments. It is fundamental to any democratic process that the decision making be public, and the reasoning a matter of public record.

There was no accountability. If the United States government gets something wrong, a citizen has many avenues for redress. With IAHC, there is no mechanism for redress, no mechanism for accountability. The rights and interests of millions of citizens can be effected without any anticipated means for redress. This situation presented the IAHC decision maker with an inappropriate level of power which lead to abuse.

With these fundamental, core principles to the policy making process of the United States government, the IAHC precedent for Internet Governance is critically and fatally flawed and will be inherently unstable. The sovereign of any body cannot govern without the consent and will of the governed. This consent can be obtained in many ways. Fascists can gain the involuntary consent of the governed by force (history has shown this to be unstable itself). Democracy gains the consent of the governed by ensuring the opportunity for the governed to have their voice heard and to have redress when injured. Lacking these rights, the governed will be alienated from the government. An alienated governed will be unstable, likely to be disobedient and refuse to comply with the rules of the body. This is critical for the Internet where there is virtually no vehicle of enforcement with governing rules other than consensus. Consensus is

gained on the Internet where something is so powerful an idea that it is adopted by the majority of the body. Where this is lacking, the rules will fail. Where individuals go off in non-compatible directions, the network splinters and the value of the network is diminished. Where the governed are alienated, where they are not a part of the consensus, they are likely to not abide by the rules of the government. Non-compatible communities will arise causing Internet instability.

But it is more than a fear of the collapse of civilization that leads us to value democratic discourse. We value democratic discourse because we believe that out of the marketplace of ideas arises good values which guide society. Where any part of society is left out of the discourse, the value of the discourse is diminished. Where debate flourishes, where issues are examined from all aspects, good policy is born which is well thought out and which respects, recognizes, and balances the interests of all in society. We value democratic discourse because good process results in good governance.

Another key aspect of true democratic debate is that the decision maker should be unbiased. In the IAHC proposal, the decision maker was biased. IAHC was comprised of trademark attorneys with specific visions of what domain name policy and trademark policy as applied to the Internet should be. Other arguments on this subject were categorically rejected by this decision makers and by IAHC. The decision maker was close minded, seeing only its own vision of trademark law as correct. The bias of the decision maker led to a flawed product. In order for Internet governance to succeed, a body must be set up which can consider policy with neutrality.

The IAHC proposal is a bad precedent. It does not comply with notions of good governance. It was not democratic and it remains undemocratic. This is an inherent and destabilizing defect to that proposal.

C. Creation of New gTLDs

10. Are there technical, practical, and/or policy considerations that constrain the total number of different gTLDs that can be created?

From discussions with technical leaders of the Internet community, A-TCPIP and NetAction have learned that there is ample room for an large number of commercial and noncommercial top level domains at the international level. Certainly, there is room for far more than the seven gTLDs currently proposed. The precise number is a technological question which should be assigned to the Internet Council, proposed in Section 3 above.

As for policy consideration, A-TCPIP and NetAction feel strongly that artificial restrictions on the development of gTLDs -- aside from the technical limits -- goes against the free market development of the Internet. The number of gTLDs must be allowed to expand as needed to serve the diverse sectors of the Internet community.

11. Should additional gTLDs be created?

Absolutely. A-TCPIP and NetAction support the creation of the maximum number of gTLDs which can be handled by the Internet in an stable manner.

12. Are there technical, business, and/or policy issues abut guaranteeing the scalability of the name space associated with increasing the number of gTLDs?

This is the type of technological question which A-TCPIP and NetAction believe should be assigned to the Internet Council, proposed in Section 3 above. The Internet Council will include some of the leading engineers of the Internet, and have the resources to summon informed and expert input on this matter.

13. Are gTLD management issues separable from questions abut ISO country code domains?

Because no definitions have been provided to this Notice of Inquiry, it is difficult to know the difference between the "management issues" discussed in this question and the "policy issues" discussed in other questions. It is likely that many of the management and administration issues -- the technical questions of how to run a registry -- are and will be similar for top level domain names and country code domain names. It is the policy issues, however, which will be different. A-TCPIP and NetAction believe that gTLD policy questions are separable from ISO country code domains, and this belief reinforces its arguments for a domestic Internet Council. The Internet Council would provide the diverse representation of the Internet necessary for a democratic review of policies under the .US domain name -- a domain clearly bound by U.S. law and the protections of U.S. Courts. Each country should use oversight of its own country code as a basis for educating itself about Internet governance domain name issues and coming to a consensus involving how these issues should be managed domestically and shared internationally.

GTLD policies should be negotiated by countries in treaties. Countries, expert in the administration of their own country code domains, would knowledgeably come together for the negotiation of policies for gTLDs. These policies may well be different from the individual country codes, but will reflect shared concerns and priorities.

A-TCPIP and NetAction note that the Memorandum of Understanding on gTLDs at the International Telecommunications Union is not an international treaty, but a process of bypassing international checks, balances and processes. Similarly, the work at WIPO follows the ITU example. Only treaty negotiations by informed and educated parties are the appropriate way to move forward with Internet governance at the International level. Otherwise, international policy is left for the largest corporate players -- which is not the result we have sought in any other area of international law.

14. Are there any other issues that should be addressed in this area?

A-TCPIP and NetAction seek to put forward some constructive suggestions regarding the creation of gTLDs and the reorganization of the .US TLD. We view the next phase of domain name creation as a major organization of the electronic frontier. To date, the electronic frontier towns have largely grown organically -- with industry along side of residences, along side of town centers. Now, with the millions pouring onto the electronic frontier, it is time for zoning and formal organization of the space. A-TCPIP and NetAction's simple recommendation is that the same groups that would receive space in the physical world be given space in cyberspace. Just as zoning for schools, parks, shopping malls, residential areas, and town centers helps people to understand the organization of their cities and town, so too will such an organization of cyberspace allow people to navigate quickly and easily to the speech they are seeking. We propose the following additions to the .US domain name and that the U.S. propose the following additions (with appropriate multinational terms) as part of a future gTLD treaty:

.POL for Political Speech.

The vital space of a town hall or public meeting house should be made available to every U.S. citizen for activity at the local, state and national levels.

.LIB and .SCH for Libraries and Schools.

Schools and libraries are coming online in record numbers, particularly as industry and governments make the funds available for projects and technological developments drive down equipment costs. Students not only are benefiting from the instantaneous access the receive to libraries and worldwide Internet data, but are becoming publishers in their own right. .EDU is only for four-year degree granting universities. .SCH should be created for elementary and secondary schools to provide them with a space for their cyberspace publications and .LIB for libraries.

.PERS for Personal Speech.

There is a great gap in current Internet space, for there is no room or allocation for personal space. Currently, personal Web sites are buried under an ill-fitting categories. The problem would be easily solved if a .PERS, or its equivalent, were allocated where people could go to find the personal brochures, pamphlets, pictures and stories that have made the Internet such a warm place. (A-TCPIP and NetAction note that its .PERS suggestion was adopted -- without attribution or reference -- by the IAHC after the A-TCPIP and NetAction Comments to the IAHC of January 17, 1997. This is an excellent start, but only a start. Many other A-TCPIP/DNRC comments and suggestions were ignored by IAHC.) We need a personal space in .US as well.

.COM for companies.

This category might need further refinement given the many large companies which share similar words in the names or their goods and services, particularly names that are descriptive of the work, product or offering they provide.

.SBA for small businesses.

Each week for a year, A-TCPIP receives calls from small businesses being driven offline by large companies with whom they share common, ordinary dictionary words in their corporate names, products or services. With the vast majority of companies, there is no confusion, deception or fraud, but merely the good faith desire to offer services over the Internet to those who seek them. Since these companies often do not have the resources to file the Motion for Declaratory Judgement and go through the judicial proceedings that could save their domain names (trials probably ranging $50,000-$100,000 in costs), and since Network Solutions will suspend the domain name with no inquiry into confusion or infringement, the domain names and the business entities are lost. We mourn the loss to the Internet community of these companies. A .SBA space would create an area for these small companies to prosper and grow.

Other cyberspace zones should be created and the Internet forum would be a proper place for their creation. Further, their rules of operation should be clear.

Schools, libraries, political and community, individuals and small businesses must be allowed to choose domain names by picking words that are attractive and appealing to them. Given the division of domain name space, the entities must distinguish their domain names only from others in their zone or category, not from every group or company in cyberspace. for example, while there can be one Olde Orchard Elementary School, oldeorchard.sch.us, Olde Orchard Elementary School need not justify its domain name against trademark holder Olde Orchard Apple Cider, registered in oldeorchard.com.us. In the different avenues of communication, public policy in a cyberspace just as in physical space must deem that the public can distinguish a school from a cider mill. Trademark infringement laws will handle any abusive situations that arise. Well-chosen domain names zones will create the appropriate spaces for the variety of noncommercial and commercial speech that the U.S. Government should protect.

D. Policies for Registries

15. Should a gTLD registrar have exclusive control over a particular gTLD? Are there any technical limitations on using shared registries for some or all gTLDs? Can exclusive and non-exclusive gTLDs coexist?

The DNRC feels that the desire to break up a currently-perceived monopoly in the registration business should not take precedence over the long-term interest of fostering a robust and competitive Internet registration industry. Registrar entrepreneurs should be given exclusive control over gTLDs, and they will then be able to market a distinctive service based upon the recognition of their gTLDs. Registrars may, at their option, wish to share controls over

particular gTLDs, but we do not feel that sharing of control of gTLDs among registrars should be mandatory as such a requirement would severely limit the marketing and product differentiation methods available to a registrar.

We suggest that, to provide a measure of stability of registrations in a competitive and possibly turbulent business environment, that gTLD registrars be required to escrow their databases with the Internet Council or other independent entity. Registry databases will then survive the failure of any one registrar and provide a means by which registrations made with failed registrars will be preserved and transferred to other registrars.

The DNRC does not believe that domain names must be "portable" and transferrable on demand among registrars. We believe that domain names should be considered analogous to a physical address, and that, in the same way that physically moving one's residence or business

results in an address change, there is no expectation that changing one's registrar will not also result in an address change.

16. Should there be threshold requirements for domain name registrars, and what responsibilities should such registrars have? Who will determine these and how?

This is the type of technological question which A-TCPIP and NetActionbelieve should be assigned to the Internet Council, proposed in Section 3 above. The Internet Council will include some of the leading engineers of the Internet, and have the resources to summon informed and expert input on this matter.

As an initial matter, A-TCPIP and NetActioncaution against the plan of the IAHC/iPOC to require each registrar to deposit $10,000 with the plan administrators during the application process for registrar. While this large down payment serves large commercial interests and will result in many registrars seeking to serve large commercial interests, it will not result in registrars serving the less-well-funded, but no less important aspects of our Internet community such as community organizations, political activists, schools, libraries and individuals.

The current plan raises too large a barrier for entry, also, for registrars seeking to participate from developing countries who will find it difficult to raise this large amount of capital, but nevertheless seek to serve the start-up and developed businesses of their economies and the voices of their peoples.

17. Are there technical limitations on the possible number of domain name registrars?

This is the type of technological question which A-TCPIP and NetActionbelieve should be assigned to the Internet Council, proposed in Section 3 above. The Internet Council will include some of the leading engineers of the Internet, and have the resources to summon informed and expert input on this matter.

18. Are there technical, business and/or policy issues about the name space raised by increasing the number of domain name registrars.

As above, A-TCPIP and NetActionbelieve that the technical issues are properly the province of a group such as the Internet Council, proposed in Section 3 above, which will include some of the leading engineers of the Internet, and have the resources to summon informed and expert input on this technical matter.

As a policy matter, the number of domain name registrars should be subject to the limits only of the marketplace. Open competition without artificial barriers such as high costs of entry through application fees will result in many noncommercial and commercial communities being served by registrars.

19. Should there be a limit on the number of different gTLDs a given registrar can administer? Does this depend on whether the registrar has exclusive or non-exclusive rights to the gTLD?

In serving a given community, a registrar may find it advantageous to offer more than one domain name category, such as the .SCH and .LIB categories recommended in response to Question 14 above. Subject to antitrust limitations, and assuming the creation of the large number of gTLD which the technology allows, a registrar should be allowed to run more than one gTLD.

20. Are there any other issues that should be addressed in this area?

A-TCPIP and NetAction have no further comment in this section.

E. Trademark Issues

21. What trademark rights, if any, should be protected on the Internet vis-a-vis domain names?

To provide a fair and balanced view of the domain name/trademark issue, A-TCPIP and NetActionrespectfully submit that three principles should be embraced:

• Domain names should be viewed primarily as Internet addresses;
• Trademarks should have no greater protection in cyberspace than in physical space; and
• The creation of digital trademark law must be done by a democratic process similar to the creation of digital copyright principles or by the courts who will balance the equities of the two sides in view of traditional trademark protections and their limitations.

The first principle is that domain names should be viewed first as Internet addresses.

Domain names are the addresses used by people worldwide to find speech and files that interest them throughout the Internet. Domain names are used in various ways across the Internet. Use as identifiers for websites is only one use. Domain names are also identifiers for FTP file access (file transfer protocol), for network news identification, for internal machine names, for electronic mail addresses of individuals and corporations, and other uses. In the vast majority of cases, Internet domain names are not used as trademarks at all, but solely as addresses and location identifiers. The difference between addresses and trademarks is seen in the physical world around us: there is a Hershey Pennsylvania, and a Hershey Company; a Harvard University and Harvard Streets in many cities throughout the U.S.; and Nabisco would never dream of stopping people in Newton, Massachusetts, from sending out invitations with their return address listed despite Nabisco's well-known Fig Newton product. Just such abusive rights are being asserted by trademark owners in cyberspace. The principle should be adopted that domain names, without any further use, are addresses and have the same protection against trademarks as addresses.

The second principle is that trademarks should enjoy no greater protection in cyberspace than in physical space. The goal is to preserve not only the traditional protections of trademark rights, but also the carefully created limits, exceptions and defenses to trademark use. In the U.S. and in other countries with well-developed trademark law, it is recognized by legislators and courts that trademark protections involve a difficult balancing act: protection for the marks by which companies identify their goods and services and the right of all people to use the common, ordinary words of their language and their last names and initials to identify and describe the full range of their activities. In the U.S. was decided to allow companies to register common, ordinary words as trademarks provided those words were not generic or merely descriptive of the good and services. It was considered inherently unfair to allow a single company the sole right to use a word that was common or central to all the goods or services in its class, for example milk, nails or wool. For those registering these words in a manner which was not generic or descriptive, such as "Au Bon Pain," for a bakery/restaurant that specializes in good breads but serves many other types of food, trademarks were never intended to remove the adjective "Bon" or good and the noun "Pain" or bread from commercial use by bakeries (who could perhaps not register "bread" because it would be descriptive). Similarly, defenses to trademark infringement have been carved out by the courts for those who want to criticize, comment on or parody well-known trademarks.

Saturday Night Live may parody a company's commercial and make reference to its goods or products and their shortcomings. While these uses of trademarks are not favored by large corporate trade holders, they have been found to be fair, legitimate and even favored uses of trademarks by the courts as protections of robust free and political speech. Future Internet policies vis-a-vis trademarks must preserve, not diminish, these hard-fought rights for the entire community to use basic words and phrases. In particular, we note that the principles for resolving conflicts are well established in the U.S. and all countries with well-developed trademark law. In the United States, a person may be found guilty of trademark infringement if he shall:

... use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection wit which such use is likely to cause confusion, or to cause mistake, or to deceive." 15 U.S.C. Sec. 1114 (1)(a).

The operative words are "use in commerce" in a way which "is likely to cause confusion," mistake or deception. Even under the new Trademark Anti-Dilution Act of 1996, a likelihood of confusion must be shown. Thus, since mere registration of a domain name provides no indication of use whatsoever, registration cannot be the basis for suspension or revocation of a domain name on trademark infringement allegations. Similarly, the mere fact that a corporation holds a trademark for the word "roadrunner" on a cartoon character should have no effect on the ability of an Internet Service Provider to call itself Roadrunner, Inc., and to register roadrunner.com. without further showing of intent or likelihood to cause confusion.

As the third principle, the creation of digital trademark law must be done by a democratic process similar to the creation of digital copyright principles or by the courts who will balance the equities of the two sides in view of traditional trademark protections and their limitations. The A-TCPIP/Net Action urges the Department of Commerce to encourage further study and consensus building in this complicated and sensitive area. As with the digital copyright hearings of a few years ago which asked what the scope of copyright law should be in the online environment, a separate and open proceeding should take place to determine what "digital trademark" should be in the online environment. Only by having an informed debate among academics, attorneys, companies, and Internet users can we establish an informed U.S. position, which can then be used as a basis for an international position in negotiations regarding an international treaty (as we did with the digital copyright treaty last December).

22. Should some process of preliminary review of an application for registration of a domain name be required, before allocation, to determine if it conflicts with a trademark, a trade name, a geographic indication, etc.? If so, what standards should be used? Who should conduct the preliminary review? If a conflict is found, what should be done, e.g. domain name applicant and/or trademark owner notified of the conflict? Automatic referral to dispute settlement?

A-TCPIP and NetActionoppose preliminary review of applications for registration of domains names for the basic legal principle set forth in response to Question 21, above. As set out in U.S. law, 15 U.S.C. Sec. 1114, infringement cannot be evaluated until there is actual use of the mark in an manner which is confusing or deceitful by another party. Mere registration alone provides absolutely no information about the use of that domain name. Until the domain name is used for World Wide Web or other types of Internet activities, there is no basis for knowing whether its use will be infringing. Trademarks owners in cyberspace, just as in the physical world, must wait for use before bringing suit.

Further, a preliminary review will only tack on unnecessary time for registration of domain names. A 60 day waiting period was proposed by the International Ad Hoc Committee and roundly voted down by those Internet voices following the IAHC discussion. While a 60-day public Notice period may be normal for a commercial entity that envisions years of investment in a new brand name, it is far beyond the planning times of most community organizations and certainly outside the window of emergency work. Thus, a town-wide party will be completed and cleaned-up in sixty days; an online protest of the passage of the Communications Decency Act will be untimely and overdue after sixty days, and the December Notice from the local PTA abut a dangerous new toy will be issued long past Christmas if all community organizations had to wait 60 days for registration of their websites.

Further, we note that the 30 automatic suspension period now advocated by WIPO and enthusiastically supported by the U.S. PTO is a violation of trademark infringement principles. This proposed rule, likely to be adopted in September at WIPO, would allow a trademark owner to challenge any domain name registration within 30 days and result in automatic suspension of the website. Thus, there is no evaluation of usage, no review of likelihood of confusion, no assessment of intent to deceive as required under a trademark infringement test prior to the de facto injunction that results in the suspension of the domain name and the loss of the speaker's ability to communicate on the Internet.

As in physical space, Internet users must be allowed to register their domain names and exercise their noncommercial and commercial speech rights. If their speech causes confusion with trademarks, traditional principles and processes, as well as the intimidation tactics of the attorneys of large companies, will result in the infringer being punished and avoid injunctions without due process and chilled and censored speech.

23. Aside from a preliminary review process, how should trademarks be protected on the Internet vis-a-vis domain names? What entity(ies), if any, should resolve disputes? Are national courts the only appropriate forum for such disputes? Specifically, is there a role for national/international governmental/nongovernmental organizations?

As set out in response to questions above, the question of digital trademark law should be one opened to discussion and consensus building on the Internet. The advent of large trademark holders to the Internet is a fairly new phenomenon, only over the last two years. Large trademark owners came online to find that, in many cases, the shortest and "sexiest" versions of their corporate names including three letter acronyms and one word abbreviations were already taken in the .COM database. In some cases, the words were taken by a few people who purposely sought to register large numbers of well-known corporate trademarks. In most cases, however, the words were taken by the growing groups of innovative entrepreneurs, small businesses and individuals who arrived to the electronic frontier before the large companies and believed that they had the right to use common, ordinary dictionary words and their own last names and initials to label their new businesses and their political and personal speech in any manner which did not cause confusion with existing companies or seek to deceive customers of such large trademark holders. We see no reason under law, no basis under equity, and no long term benefit from society in driving these Internet pioneers offline. It is, after all, their innovation and hard work, their speech and their services, which attracted the rest of us to the Internet.

After a domestic position is arrived at through the process of hearings, comment, and proposed law and principles, the U.S. should then negotiate a treaty regarding online trademark rights with other countries, perhaps under the auspices of the World Trade Organization. A-TCPIP and NetActionenvision that national/international governmental and nongovernmental entities will play a role in the development of such a treaty.

For the moment, the appropriate entity to resolve disputes is the courts of the U.S. and other countries. In an area such as digital trademark and trademark vs. domain name, where there is no clear law, it is the courts that are best equipped to balance the text of trademark law with the rationale for its limits and the spirit of a long line of defenses. Courts have done well in looking to see whether the trademark infringement allegation is a legitimate one -- and thus revoked domain names from individuals who knowingly and intentionally registered and used domain names of services and goods in a manner which caused confusion -- or an illegitimate one -- and allowed a small business to continue to use its domain name despite the over broad trademark assertions of a large corporation. Until federal legislation is passed, no mechanism shold prohibit or restrict aggrieved parties from using the court system.

24. How can conflicts over trademarks best be prevented? What information sources could help reduce potential conflicts? If there should be a database, who should create the database? How should such a database be used?

Since trademarks are so frequently comprised of common dictionary words, acronyms and last names, conflicts with domain names, websites and web content of all forms cannot be avoided. The Internet community must come up with a new balance between the scope of trademarks and the rights of all other parties in the robust and diverse medium of Internet communication to use the same terms. There is no just way to short-circuit this democratic process. Databases of registered domain names will encourage the abuse of trademarks by encouraging trademark owners to continue to look at the domain name itself and not the use.

In the physical world, a trademark owner generally learns of an infringing use because a newcomer, purposely or inadvertently, used a term in such a way that clients of the trademark owner are confused as to the origin of the goods or services. So too, in cyberspace, a trademark owner will learn of an infringing use because an Internet user will use the term in such a way that others are confused, and report their confusion to the trademark owner. How a term is used in commerce is not the type of information that any domain name database could or should provide.

25. Should domain name applicants be required to demonstrate that they have a basis for requesting a particular domain name? If so, what information should be supplied? Who should evacuate the information? On the basis of what criteria?

No, domain name applicants must not be asked to demonstrate a basis for requesting a particular domain name. The suggestion is actually quite surprising because no registration of a corporate name in the United States requires that the applicant demonstrate a basis for the particular corporate or trade name. People have the right to name their businesses, their children and their homes anything they like, and it is remarkable that we would consider any lesser right for the naming of a website. Imagination should be the only limit. To curtail the rights of individuals, organizations and companies to choose their locator, without any showing of bad faith or bad intent, would cut to the fundamental freedoms which makes the Internet innovative and robust.

26. How would the number of different gTLDs and the number of registrants affect the number and costs of resolving trademark disputes?

At present, no one has presented any evidence of relationship between the cost of resolving trademark disputes and the number of gTLDs or registrants. A-TCPIP and NetActionsuspect that no relationship exists. More gTLDs will probably be beneficial in that it would discourage those companies with trademarks containing descriptive terms or terms which, in other contexts are generic, from seeking absolute control in all gTLDs and provide registration options for others.

27. Where there are valid, but conflicting trademark rights for a single domain name, are there any technological solutions?

As discussed in Question __ above, an excellent technological solution would involve search engines which could quickly search URLs, domain name owners, and broad descriptions of home pages and return a list of sites with strong ties to specific words, unlike search engines which return any site with a requested word. Thus, a search of APPLE in such a search engine would return not only Apple Computer but a consortium of apple growers, a town's upcoming Apple Festival, and website of Jane Apple. Such a search engine could be built with existing technology.

28. Are there any other issues that should be addressed in this area?

Two principles discussed widely in response to the Trademark Sections merit additional mention. First, the rights of non-trademark holders must be a part of the debate and actively protected. Non-trademark holders include individuals, small businesses that may never seek a trademark, and entrepreneurs who are in the midst of their trademark filings. (It can take anywhere between 12 -18 months or even longer to register a trademark in the U.S.) The benefits of expanding trademark laws beyond infringement to dilution standards must be balanced against the damage to the goals of free communication on the Internet and a robust free market on the Internet. Those with the foresight and vision to enter the Internet community early that should be rewarded, not penalized by the loss of their addresses. Further, the traditional defenses and limitations to trademark law such as free speech, news reporting and parody must be preserved and extended into cyberspace. It is the ability of people to communicate freely in this robust medium (and to clearly identify their speech with domain names) that will continue to attract users in the U.S. and worldwide; it is the use of the Internet for personal and political speech that will continue to award it the highest protection and strictest scrutiny from the courts against content regulation when it is proposed.

The process must be a fair one where not only the input, but the decisions, are made by a fair and balanced group of decision makers. Due process is a key democratic principle in the United States and yet the dangers and threats of trademark abuse on Internet -- including the reverse hijacking and overreaching of companies with trademarks in common words and names such as Roadrunner, Prince, Ty, and many others -- are not even acknowledged by the PTO staff assigned to handle the PTO position domestically and internationally. The PTO is properly an advocate for trademark owners and the expansion of trademark rights. As with any other political issue in the United States, the U.S. position must be derived from a true debate, not the discounting of facts and positions from a vast, but largely silent, Internet majority.

A-TCPIP and NetAction warn that if trademark law becomes overbroad on the Internet, making the only protected users of domain names large trademark owners, then the Internet will wither from a robust and diverse community into an abandoned cyberspace shopping mall. The vitality of the political debates, personal inquiries, new businesses and entrepreneurs who give the Internet such vitality today will disappear. Further, the vast silent majority of the Internet will awaken to seek justice and change through Congress and the courts. Just as the regulation of fees for ATM machines was initially left to industry, and then only one year later, control was retracted by Congress because of wide-spread public outcry against double billing and high prices, so too will undue expansion of trademark law on the Internet ultimately result in public outcry, Congressional oversight and ultimately unwanted regulation. If the Internet seeks to avoid this backlash, and A-TCPIP and NetAction do, then we must put basic principles of due process, democratic decision making and the traditional balances of trademark law back into the process immediately.

Respectfully submitted:

By:_______________________

DOMAIN NAME RIGHTS COALITION

Kathryn A. Kleiman, Esq., President

FLETCHER, HEALD & HILDRETH, P.L.C.
1300 North 17th Street, 11th Floor
Rosslyn, Virginia 22209
(703) 812-0424

Michael T. Doughney, Vice President
Harold Feld, Esq., Secretary
Mikki Barry, Esq.
Robert Cannon, Esq. *

NETACTION
Audrie Krause, President

August 18, 1997
* Signing in his personal capacity.