At 06:23 PM 1/22/99 -0500, you wrote:
>The issue that Schwimmer raises is whether an administrative law system
>would be
>fairer than the NSI law. Theoretically, it could hardly be worse, especially
>if a
>"use in commerce," "likelihood of confusion" and "dilution" analysis was
>actually
>performed.
My point was that insofar as the U. S. is concerned, an administrative
law system already exists in the US Patent and Trademark Office. I
hope that you, too, refer to "NSI law" with tongue in cheek -- NSI does
not have and has never had the right to establish law on trademark
related issues.
>
>In actual fact, however, the admin law system will be defined and
>administered by
>WIPO. We cannot overlook the institutionalized prejudice that WIPO represents.
>WIPO's report confirms the suspicions that many of us had months ago, which is
>that it is acting as a special interest advocate for trademark interests,
>and not
>as an impartial adjudicator of the conflicts caused by domain name-trademark
>interactions. WIPO did not devote a single word in that report to the
>documented
>abuse of innocent domain name holders by aggressive TM lawyers. It did not
even
>attempt to put protections against such problems into its proposals. It
>lavished
>attention on evidence about abuse of TM holders and completely and willfully
>ignored evidence of abuse in the opposite direction.
And with all of that I concur. Problem is, the U.S. administrative law in the
USPTO that I refer to above only applies U. S. law to U. S. cases. Mikki
Barry recently questioned the notion of international treaties, since we
already HAVE LAWS (as I recall she put it!), and the point she makes is
well taken. The problem here is that we are faced with a unique situation.
Treaties like that which formed the EPO (at Massnicht, I believe), GATT, and
NAFTA have traditionally included cop-out clauses wherein individual
signatory countries could opt out of particular clauses in favor of their
own national law. Sometimes, accommodations are made: in order to get
the intellectual property rights issues in GATT agreed upon, the U. S. let
large numbers of foreign copyrights that would otherwise have lapsed in
the U. S. be re-installed, so to speak. The problem with domain names is
that if there is to be agreement, EVERY country must accommodate to
some extent, since there is but one electronic world. There is also the
proven fact that some countries (naming no names, of course!) will blithely
ignore any and all rules, no matter how solemnly entered into, in what they
perceive to be their own national interest. THAT problem is of course easily
solved: you pull their plug. An international treaty that solved the domain
name v. trademark problem is possible in principle, and achieving the same
would stand as an outstanding example of international cooperation on a
significant commercial and indeed cultural matter. What is lacking at the
present is the will to do so: an awful lot of people would be required to get
down off an awful lot of high horses and realize that a lowering tide drops
all boats.
>
Bill Lovell
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