[registrars] Single Letter Domains

[John Berryhill]

> If someone uses the label "Z" to mark all his products, 
> I believe he has a legitimate interest in registering z.com.

Z.com, of course, being already registered to Nissan.

There are longstanding single letter marks.  In the US, a paint company
(Benjamin Moore) has held registration of "M" for paint since the 1920's.

But these sorts of claims are utterly beside the point.  

A 90 year old trademark for paint is no more "legitimate" than Marcus Faure
wanting to bid on M.com, simply because it is the first letter of your name.
Further, next year I would like to launch a product or service identified as
"M".  So long as I don't sell paint in the meantime, my desire to reserve
the name for that use is perfectly legitimate.  It seems that a considerable
portion of the ICANN community has been led to believe bizarre things about
the purpose and limits of trademarks.  To believe that there are some 26
"most deserving" entities corresponding to each letter of the alphabet is
arrant nonsense.

As far as inequitable conduct in shaping policy for the allocation process
is concerned, consider the following hypothetical.

Let's say that, prior to the transition from RRP to EPP, NSI had argued
convincingly that we should maintain RRP and not change to EPP, and that Mr.
Nevett, using his wit and charm, persuaded the community that keeping RRP
was the right thing to do.

That would have been all well and good, but for the fact that since April
1999 a chain of patent applications had been nurtured by NSI, which few
people knew about, and which recently matured into a NON-hypothetical issued
US patent two months ago, including the following claim:

United States Patent  	7,299,299
Hollenbeck ,   et al. 	Issued:  November 20, 2007
Assignee: 	Network Solutions, Inc.  (Herndon, VA)
Shared registration system for registering domain names

1. A method for processing a domain name registration operation in a shared
registration system comprising the steps of: receiving a registry-registrar
protocol (RRP) request for performing a domain name registration operation
from a registrar; parsing the request; determining whether the registrar
that sent the request is authorized to perform an action necessitated by the
operation; if the registrar is authorized, performing the operation; storing
changes necessitated by the operation in a domain name registry; and sending
a RRP response to the registrar, the response indicating success or failure
of the operation.

I believe, Marcus, that after picking your jaw up from the floor at the
breadth of that actual issued patent claim, you would agree that you'd been
had by Mr. Nevett.

In the original MoU, one of the tasks assigned to ICANN was to identify
intellectual property relevant to its activities.  I believe this task was
largely ignored because it is not appreciated that policies can prescribe
processes, and the breadth of patentable process in the US has expanded in
the last ten years.

But, changing gears back to the single letter domain name issue, as you
point out there may be all sorts of existing proprietary interests in single
letters in connection with specific goods or services.  For an outfit like
Overstock.com to propose a seemingly neutral "period of more than two 
years prior to the call for the Public Forum" of trademark registration (and
in the United States, no less) WITHOUT saying, "and by the way, we qualify
for that by some two months, having been working on this strategy for
several years" is certainly less than forthcoming, and some would think
deceptive. 

Why two years?  Why not make it four years, ten years, or indeed out of
respect for Benjamin Moore paints and their "M" mark - let's make it fifty
years.  Well of course the proposal put forth by Overstock.com is specific
to "two years" for a solely self-interested reason.  

And that's the sort of thing we need to look out for in these types of
"objective" policy proposals, if indeed the responsibility for identifying
IP interests in policy formulation is not going to be fulfilled.  

Finally, if you've never taken a look at the sorts of things that are in the
pipeline, I would urge you, and all registrars, to go here:

http://appft1.uspto.gov/netahtml/PTO/search-adv.html

type in the search string:

ttl/("domain name" or "domain names")

...and prepare to have your mind blown.  Now, mind you, the search results
are simply those patent applications which have "domain name(s)" in the
title, so this is a fairly crude approach.  But when you see something like:

United States Patent Application  	20070118620
Published May 24, 2007
"Registering and using multilingual domain names"

Inventors: 	Cartmell; Brian; (Seattle, WA) ; Frakes; Jothan; (Normandy
Park, WA)

..then you might pay closer attention if my good friend Jothan advocates one
or another policy option relating to IDN's and, as we say in Cayman, "Listen
large."

Or, for another example... How are things going in the transfer task force? 

United States Patent Application 20040199620
Ruiz, Tim ;   et al. 	
Published October 7, 2004
"Method for transfering a registered domain name from a first registrar to a
second registrar"

D'ya think that just maybe the Transfers TF might want to have a look at
that patent application before setting a policy in stone?

D'ya think that just maybe, if - and again purely hypothetically - an ICANN
policy inadvertently puts us in a situation where we all end up having to
pay royalties to a company which, coincidentally, employed an officer of the
RC constituency, then someone is going to cry "foul"?

Now, please, I haven't looked at these things to any great level of detail,
and there is no question in my mind that Mr. Ruiz is one of the most
brilliant and earnest people I have the honor to know.   We do need to
conduct the policy process with all cards face up on the table, though.

In any event, the single letter domain issue is a conveniently bounded
example of a much larger festering issue in "how things get done" around
these parts.