TITLE

		A PROPOSED STRUCTURE FOR LODGING DOMAIN NAMES 
		AND DEALING WITH INITIAL DISPUTES
		(draft-iahc-elliott-id-00.txt)



ABSTRACT

The bulk of the IAHC draft proposals have looked at the need for structural
change.  This proposal looks at a possible procedural model for dealing 
with the inevitable demarcation disputes that will arise, regardless of 
whether the system is changed or left intact.

BACKGROUND

There seems to be a growing view that new Top Level Domains (TLD) are 
needed.  However, there also seems to be a view that the current naming and
operational style including the form and structure of current DNS strings 
should not be changed at the moment.  That is until more detailed analysis 
and debate of the issue has been made.

It is suggested that to be adequate, a domain name allocation system should
meet three basic criteria.  It should be:

Simple and Inexpensive.

The procedures should be relatively straight-forward and easy to use.  
While some cost is inevitable it should not act as a bar to ordinary people
obtaining domain names without undue difficulty.

Quick.	

There should be no major delays in obtaining domain names, in routine 
situations.

Fair.

It should be fair and reasonable to strike a balance between various 
competing interests.  These would include a party seeking a domain name, 
any parties with possible interest in the domain name (eg. a competitor), 
the domain name allocation agency and the public at large.  There will be 
times where the interests of these four groups are the same.  By the same 
token, there will be times where they are not.

Most current domain name allocation schemes around the world meet the first
and second objectives. However, in my view, they largely fail to provide a 
fair and equitable application procedure.  For example, the Netherlands 
provides quite comprehensive vetting procedures.  Here there is a much 
greater likelihood of finding the correct balance between competing 
interests.  However, absent Government funding for the process, it is 
likely to be expensive and not necessarily expeditious. 

Others, such as the NSI in the USA, focus on procedures to "suspend" the 
domain name, pending resolution of any dispute.  This represents a 
significant step in the right direction.  However, the focus is far too 
much on resolving disputes after they arise rather than pre-empting them 
in the first place.

THE PROBLEM

There seems to be a growing view that the answer to these problems is to 
sub-divide or create new domains at both the top and second level.  There 
is nothing inherently wrong with the thought that if domain name disputes
arise largely over allocation of a scarce resource, the answer is to make
that resource less scarce.  That is fine in theory.  However, if we equate 
scarcity of the resource with exclusivity in a legal sense, there will 
inevitably be commercial entities who have a stake in and wish to retain 
that exclusivity.

The example which explains the point, is the trade mark/trade name XEROX.  
XEROX is a highly distinctive and valuable trade mark/trade name which has 
been carefully coined and assiduously protected by its owner.

Xerox, not unsurprisingly, believes that it has a broad and protectable 
right to the trade mark/trade name XEROX.  Accordingly, the Xerox company 
would be quite likely o take exception at another company using the XEROX 
trade mark/trade name to sell a wide range of products or services.

Where Xerox's exclusivity starts and stops is not for me to suggest.  The
point is that it would be difficult to devise a system whereby domains are
to be split into categories, whether it is according to the International
Classification of Trade Marks or otherwise, without inciting a response 
from the wide range of right holders.

Included amongst the current proposals (refer: www.iahc.org) are ones to 
establish a single new international Top Level Domain with domain names 
restricted to trade names (refer: <draft-iahc-hoffmann-tndn-00.txt>) and
that Top Level Domains available to commercial entities include the 
existing ".com" or ".co" and a new domain categorical, eg ".oil" and a 
final domain synonymous, eg ".biz" (refer: 
<draft-collier-brown-proposal-02.txt>).

These proposals may have merit, nevertheless, these and other proposals do
not solve the inevitable demarcation disputes that will arise.

It will be a very difficult task to try and devise a structure whereby 
higher and possibly lower level domains are expanded and/or split.  In 
doing so, we immediately get into major nomenclature problems.

PROPOSAL

It is suggested that the best way to balance the competing interests of 
the applicants, right holders, the allocating body (registry) and the 
public at large is to focus not just on the structural hierarchies but 
also on appropriate procedural systems.

The following proposal is put forward:

1. 	Prior to seeking a domain name, an applicant is required to make 
reasonable enquiries to ascertain whether the domain name is available or
is likely to come into conflict with the legal rights of a competitor or 
other third party.  The applicant would be required to take positive
steps to check the situation out.  This may be required on an international
or local level depending on the type of domain name sought.

The applicant would also be required to give a written assurance that 
he/she/it has undertaken these enquiries and is unaware of any legal 
impediment to obtaining the domain name.  The applicant would also need to 
warrant that the domain name would be not used for any improper or unlawful 
purpose, including to block or deprive the owner of its right to use that 
trade mark/trade name.

2.	The application for allocation of a domain name would then be made 
to the domain name allocation agency (registry) whether locally or through 
an international agency, accompanied by the appropriate fee.  

3.	The domain name allocation agency would compile a list of 
applications.  This list would be posted monthly on a publicly searchable 
web site. 

4.	Interested parties including right holders would then have the 
opportunity to check the monthly list of proposed domain names to check 
for any possible conflicts.

5.	Interested parties would be given one month in which to lodge 
opposition to any proposed domain name.

6.	In the absence of any opposition, the domain name would be 
allocated two months after the date of application.

7.	In the event of the lodging of opposition, the party objecting to 
the granting of the domain name would furnish appropriate proof of the 
basis for this.  Guidelines as to the type of information required would 
need to be set out.  

8.	Evidence in support would then need to be submitted to an 
independent body or expert for a decision to be made.  This body could be 
a regional or international one and communication could be conducted by 
E-Mail.  To ensure fairness and the reaching of a valid decision, the 
applicant for the domain name would also need to have the opportunity to 
put its case.  A non-extendable one month deadline for making its case and 
if necessary lodging any documentation could be set with a decision 
required to be made within a total of six weeks.

9.	The decision would either be to grant the domain name to the 
applicant or refuse it.  The domain name would then be allocated and the 
available immediately.

10.	Thereafter, if either of the parties disputed that decision the 
domain name would only be suspended or withdrawn upon obtaining a court 
order or arbitral award.

DISCUSSION

This would mean that in the case of the routine allocation of domain names, 
a maximum delay of two months would be experienced.  In the case of 
disputed domain names, the period would not exceed 3 months.  

The system would provide a relatively quick and inexpensive procedure which 
most importantly would provide a machinery for clearing domain names and 
dealing with disputes on an expedited and simple basis.  

If the parties wished to take the matter further after this determination, 
they would not be denied this right.  The point is, however, that the 
parties would at least be provided with a mechanism to deal with the vast 
majority of situations.

The system would in a way be similar to the trade mark registration 
procedures in some civil law countries, such as France, which have a 
non-examination type registration process.

Importantly, the scheme would put the onus of policing the granting of new 
domain names on those parties with prior/vested rights - whether real or 
imaginary.  It would shift the burden off the allocation 
agencies/registries and to a large extent off legitimate domain name 
applicants.

It is suggested that this proposal represents a compromise between the one
extreme of investigation, examination and then formal decision making 
which would be far too cumbersome and expensive and the other extreme of 
doing nothing to vet applications or indeed to assist the parties when 
inevitable disputes arise.  It also avoids the drawbacks of systems where 
the suspension of a domain name in the event of a dispute amounts, in 
effect, to an interim injunction against the holder of the domain name.  

The only real cost involved with the proposed procedures is in having any 
disputes determined.  However, this should not be substantial if clear 
rules of procedure are set out, the parties are not able to undermine 
these procedures by seeking adjournments or extensions and the expert 
determining the issue has limited powers.  Furthermore, as a disincentive
to using the objection procedure as a delaying tactic, the unsuccessful 
party could be required to pay the costs of the expert.  



Author

Clive Elliott
100232.3352@compuserve.com
or
baldwinsakl@bscakl.baldwins.co.nz