RE: [ALSC-Forum] Self-regulation and ICANN

[Alphageek]

Esther Dyson says:

]>
]> You're right, there is no scarcity of potential domain names.....you can
]> always add new TLDs, or in extremis put a 1 in front of every
]> word (as they
]> do with phone numbers).etc.
]>

Limiting the number of TLDs is an artificial means of imposing scarcity,
which has driven and perpetuated several unfortunate market dynamics.  The
effrect of this artificial scarcity is MUCH more pronounced than the other
kind of "scarcity" which you posit, and which does NOT drive the unfortunate
dynamics we observe.

]> But there *is* a scarcity of space in people's heads, which is why
]> trademarks are not *artificially* scarce, but in fact reflect
]> the scarcity

They reflect scarcity differently than "scarcity of attention," Esther.  For
example, some Word Marks (e.g., Apple (Records? Computers), Bass (Beer?
Shoes?), Cello (Stereo Equipment? Restaurant?), Delta (faucets? air
travel?)) are NOT scarce in the sense that TM-identical ".com" addresses are
scarce.  At the same time, some TM owners have pushed for greater artificial
legal scarcity of certain KINDS of trademarks - which is the origin of
so-called "dilution" causes of action.

So we CAN have Delta faucets, airlines, and (if you want to enter a new
market) -- mouthwash or aftershave.  And we can have a multitude of LOCAL
"Delta" brands of restaurants, garages, automobile dealerships,
hairstylists, bookstores and other things.  But if you try to sell Kodak
mouthwash or aftershave, however (even locally), you are diluting the
trademark.  And it seems that every trademark owner in the world views its
trademark as a "famous" one entitled to a dilution remedy even if the mark
CLEARLY is not "famous and distinctive" (whatever THAT means).

I doubt that in the heads of rougly 6 billion people in the world there's
any "scarcity" -- or at least any "scaricity" that matters for any practical
purpose -- of ability to recognize and remember different trade symbols used
in a multitude of different cultures.

Rather, the scarcity seems to be a scarcity of words and images that are
suitable for transformation into trade symbols, when used in a particularly
specilaized and meaningful way (use as trademarks).  And incumbent players
(those who have already established a brand identity) routinely attempt to
increase scarcity of symbols through a variety of means, in order to make it
as difficult as possible for new entrants to secure a "catchy" brand and
enter the marketplace to compete.

Make no mistake about it, Esther -- THAT impulse to cerate barriers to entry
by manufacturing and maintaining artificial scarcity of potential trade
symbols is the improper motive behind the TM lobby's vehement insistence
that we impede the opening of new TLDs.

]> of attention. And because domain names get some of their value by
]> association with trademarks, there *is* a scarcity (inversely related to
]> value)  vis a vis domain names that matters.
]>

Not all Domain Names do so.  Most of them do not.  And you should be the
last person who needs to be reminded that trademarks and domain names
emphatically are NOT the same thing.  Domain Names are not automatically
trademarks and even a Domain Name "Trademark.com" that corresponds with a
FAMOUS trademark is not itself a trademark if it is used (E.g.) for
criticism of the company.

Some helpful writing on the subject can be found here:

http://www.eff.org/Legal/Cases/Ford_v_GreatDomains/

as well as on the 2600 Website, in the PDF copies of the papers filed in the
dispute between 2600 and Ford about Fuckgeneralmotors.com.

Domain Name governance is about a LOT more than just trademarks.  And the
trademark interests need to be put in their proper place alongside all other
constituencies -- not on the elevated pedistal upon which they have demanded
to be put and upon which the ICANN Board has obligingly put them.

ECG