At 01:50 AM 2/2/99 , Bill Lovell wrote:
>At 08:54 PM 2/1/99 -0800, you wrote:
>>
>>On 02-Feb-99 Dave Crocker wrote:
>>> At 01:48 PM 2/1/99 -0500, [EMAIL PROTECTED] wrote:
>>>>provided in response to the question "how many times did NSI
>>>>>invoke its Domain Name Dispute Policy?"
>>>
>>>
>>> So 800 or more times a year, NSI goes beyond the rule of established law
>>> and extends trademark privileges farther than is done is most courts.
>>>
>>> It remains an unfortunate oddity that NSI does not, instead, allow
>>> contestants to resolve the matter themselves, either on their own or
>>> through legitimate courts, producing a directive for NSI rather than
having
>>> NSI assert itself as a decision-making entity.
>>>
>>It is also unfortunate that the trademark interests are not willing to
follow
>>the same course.
>>
>Oh, golly. Now I wonder. Could it have been some cabal of trademark owners
>-- or the marketing departments thereof, that talked NSI into dumping RFC
1591,
>which did precisely what Mr. Crocker is seeking?
The July 1995 NSI policy, the one that repudiated RFC 1591 and set into
place the flaws that now cause so much harm, was crafted by the law firm
that in 1995 advised SAIC, NSI's new owner. That law firm had some 1300
active trademark files at that time for other clients. I have wondered
whether this helps to explain the extreme bias in the policy favoring the
challenger and disfavoring the NSI customer domain name owner. And indeed
the law firm was quoted as saying that it designed the policy to provide
"special relief" for trademark owners.
But the July 1995 policy contained various drafting blunders (such as
citing the wrong section of the CFR for certification of trademark
registrations, and failure to handle non-US trademarks properly) that cause
one to be skeptical as to the trademark expertise of the drafter or drafters.
There is an association of trademark owners and lawyers, and it is called
the International Trademark Association (INTA). INTA said this:
After significant study and consideration, INTA concluded that Network
Solution's (NSI) domain name dispute
resolution policy is unworkable and cannot be "fixed," because neither
NSI, nor any other future registrar or
network information center should be a tribunal for trademark dispute
resolution or be expected to be a specialist
in trademark matters. (Responses of the International Trademark
Association to U.S. Government's Request for
Comment on Internet Domain Name System.)
INTA also said this:
... this paper proposes that the current NSI Dispute Policy be
recognized as a failure and eliminated, that domain
name disputes be left to the courts, [and] that [NSI] not participate
in the resolution of domain name disputes ...
Putting an active domain name on hold is effectively a form of
injunctive relief, granted by [NSI] after the registrant
has invested in the challenged domain name. Thus, in some
circumstances, the dispute policy will allow certain
trademark owners to trump the legitimate rights of other trademark
owners and obtain the equivalent of injunctive
relief, without meeting the stringent standards for such relief
required by law. This is unfair.
The [NSI domain name trademark] policy can result in injustice and it
can get [NSI] dragged into court (often to
prevent just such an injustice) because [NSI] is playing a judicial
role that it is neither authorized nor competent to
play.
