At 10:23 PM 1/23/99 , Bill Lovell wrote: >At 08:11 AM 1/23/99 -0800, you wrote: > >>I think that, at least three of us, are in violent agreement here.<grin> It >>would seem to me that making the defense of a use easier would be prefered >>to reducing cost of offence. The problem, as I see it, is that there are >>small trademark-holders too and they also have to be protected. > >Wouldn't disagree for a minute. A possible solution would be to invoke the >interference proceedings in the USPTO, except that by the time that were >done, the infamous NSI "thirty day" letter would have taken its toll. Just >one more example of the extra-legal effects of the NSI policy. See 37 CFR >2.91 et seq. Another difficulty is that the USPTO would have to be "brought >aboard" so that it would in fact accept domain name (i.e., common law >trademark) owners v. registered trademark owner disputes. Yet another is that the trademark asserted under NSI's policy might be from Australia or Vietnam or Ukraine, and thus be a trademark for which USPTO has limited experience. The best solution of course is for NSI to return to its pre-July-1995 policy, namely RFC 1591. Under RFC 1591 (still followed by many of the top-level-domain registrars of the world) the role of the registrar is limited to putting the two parties into contact with each other, and otherwise getting out of the way. And if either party is unhappy, it can go to regular court. >What we >>have typically seen are egregious examples of trademark bullying of domain >>holders. I have seen dozens and dozens of such examples, close up. >We have also seen egregious examples of domain-name squatters. At >>the moment, it appears that DNS squatters are generally losing the battles >>and are nothing more than a minor nuisance. It's true. The trademark owners seem to have no difficulty whatsoever getting whatever remedies they need, see for example the Panavision case or the One in a Million case. And they accomplish that with or without the NSI policy. >>This is not, IMHO, justifiable >>cause to let WIPO, or anyone else, practice general DNS censorship. The >>remedies abound for after the fact protection. There is no need for prior >>restraint activities. >> >Yes, but the remedies at present are often way outside the realm of financial >possibility for small parties on either side. USPTO procedures, though they >cost also, ought at least to be somewhat less expensive. The advantage of >the USPTO is that it DOES HAVE TRADEMARK EXPERTISE, which is not >to be found in NSI nor, so far as I know, in WIPO or any other alphabet soup >that does not daily practice trademark law -- and in this limited case I mean >U. S. trademark law. The disadvantage (assuming the trigger was an NSI challenge) is that the trademark recognized by NSI as reason for cutoff of the domain name may have been from Ukraine or Vietnam or wherever ... and the USPTO isn't particularly experienced with such a trademark. There are many nice things about regular courts. (1) the courts operate on an open record. This means that anyone who wonders whether the court is acting fairly can simply look to see what the court did in previous cases. NSI conducts its deliberations in secret. (2) courts listen to both sides of the story. NSI makes its decision without hearing the domain name owner's side of the story, and indeed without telling the domain name owner of the decision until after NSI has made the decision. (3) if a preliminary remedy is to be given, the court requires that a bond be posted by the party seeking the preliminary remedy. NSI requires no such bond. (4) courts are quite experienced with disputes involving more than one country and can deal with it. NSI has repeatedly shown its ignorance of trademark law in countries outside of the US, in the language of its policies. Now the USPTO has many of the same advantages of courts, true. But people who have trademark gripes with toothpaste packages don't go to the USPTO, they go to courts. I can't see why domain names are so special that they need different treatment than toothpaste packages. __________________________________________________ To receive the digest version instead, send a blank email to [EMAIL PROTECTED] To SUBSCRIBE forward this message to: [EMAIL PROTECTED] To UNSUBSCRIBE, forward this message to: [EMAIL PROTECTED] Problems/suggestions regarding this list? Email [EMAIL PROTECTED] ___END____________________________________________
