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Act 108: Our Expert Witness

As you may know, Taubman has already submitted the report of their expert witness, David Williams. Today, on November 11, 2002, we submitted the report of our expert witness, Milton Mueller.

Mr. Mueller is an Associate Professor at the Syracuse University School of Information Studies, where he directs the Graduate Program in Telecommunications and Network Management. In addition to being a renowned academician, Mr. Mueller is one of the leading authorities on conflicts involving trademarks and Internet domain names. A couple of months ago, at the annual meeting of the International Trademark Association, Mr. Muller presented a report about a study that he had conducted involving a database of 3,850 UDRP (Uniform Domain-Name Dispute-Resolution Policy) cases, possibly the most comprehensive analysis of domain name trademark conflicts ever conducted. (You can read more about the study at http://dcc.syr.edu/markle/markle-report-final.pdf.) To say that he is an expert in the field strikes me as a massive understatement. (His Curriculum Vitae is online at http://istweb.syr.edu/~mueller/CV.htm.)

I think that Mr. Mueller's report on my case is nothing short of brilliant. He actually relies on [gasp!] facts – which, I have discovered, are all too infrequently injected into the onslaught of wild opinions that accompany discussions (and/or lawsuits) about domain names and trademarks. He introduces an element of startling clarity and reason into what has often been a muddy and emotional debate. I would not be at all surprised to find that Mr. Mueller's report will be quoted in many future discussions on the subject – and if Intellectual Property attorneys fail to cite his cogent arguments in support of their clients' positions, they're missing a good bet.

Since it's fair to say that my opinion in this matter may not be entirely unbiased, I've presented Mr. Mueller's "Expert Report" in its entirety for your reading pleasure.

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THE TAUBMAN COMPANY

LIMITED PARTNERSHIP,

Plaintiff,

Civil Action No. 01-72987

v.

District Judge Zatkoff

WEBFEATS AND HENRY MISHKOFF, Magistrate Judge Komives

Defendants.

EXPERT REPORT OF MILTON MUELLER

Milton Mueller qualifications

I am a tenured Associate Professor at the Syracuse University School of Information Studies. The School was ranked the country's number three information school by US News and World Report's college guide. I direct the School's Graduate Program in Telecommunications and Network Management. Research at the school focuses on information retrieval, Internet user behavior, and Internet-related policy. I co-direct a research center there called The Convergence Center. (http://www.digital-convergence.info)

I have conducted research on domain name trademark conflicts for five years. On this topic I have published several scholarly articles in refereed journals and presented research at refereed conferences, as well as publishing numerous other articles and books on related problems in Internet governance. My most recent scholarly product is the book Ruling the Root: Internet Governance and the Taming of Cyberspace, published by the MIT Press in June 2002. This book traces the history of the domain name system and the formation of ICANN, using property rights economics as the theoretical basis of analysis.

In June 2001 I received a grant from the Markle Foundation to conduct research on ICANN's Uniform Dispute Resolution Policy (UDRP). The main task was to create a database that would track the results of all past UDRP cases and facilitate analysis of the effects of the policy. I was responsible for designing and developing a database containing 3,850 cases of domain name trademark conflict; this included almost all UDRP cases decided between December 1999 and July 2001. The database can be downloaded freely from the Convergence Center website. I also used data derived from the database to prepare a statistical report profiling complainants and respondents in cases, the type of cases brought, and trends in cases. That report is attached to my expert report in this case. I was invited to present this research at the annual meeting of the International Trademark Association (INTA) in September 2002.

In April 2001 I was invited to become a participant in the prestigious National Research Council's study of "Internet Navigation and the Domain Name System." The NRC forms interdisciplinary committees of well-established experts to study important policy problems; the reports are circulated to Congress and federal agencies as well as the general public. This specific project was funded by the National Science Foundation and US Department of Commerce. The Committee's report will be released some time in 2003; of course, it will not reflect my views alone but a consensus of committee members with widely divergent views and areas of expertise.

In addition to my scholarly work I have extensive practical experience in domain name policy and litigation. I am a listed panelist for arbitration of domain name trademark disputes for the World Intellectual Property Organization in Geneva. I have served as a panelist in approximately 20 cases. In 2001 I was an elected representative on an ICANN policy making organ, the Names Council of the Domain Name Supporting Organization. I represented the Noncommercial Domain Name Holders constituency. In that capacity I chaired a Task Force on the divestiture of the .org top-level domain, producing a policy document that guided ICANN's removal of the .org domain from VeriSign and the selection of a new operator. I also co-chaired the Task Force on UDRP reform. I was selected by the ICANN staff to perform part of the evaluation of applicants to take over the .org registry.