Kevin and all,
Well this is indeed a juicy post! Let's us see if we can separate
the chaff from the grain here, shall we.... (See below Mr. Connolly's comments)
Kevin J. Connolly wrote:
> Roeland M.J. Meyer wrote:
>
> {snip}
>
> > ICANN must resolve TM issues according to US law or it is engaging in
> >willful criminal activity.
>
> Not true. Whichever entity is ultimately responsible for publishing zone files will
>likely be sued over trademark infringements. It's not likely that the claimants will
>succeed. The history of NSI's lawsuits in this area lend no credence to Mr. Meyer's
>arguments.
Only partly true Kevin. Should the ICANN be managing the Root, they are
in effect legally liable to that extent. Should the ICANN take or impose any
policy with respect to the assignment of TLD's to the legacy Root structure
that in or may be an infringement to a US TM, or take any policy that could be
considered an unlawful impediment as it relates to a TM of a TLD, they
would be liable as well. If done so, as Kent suggested in a previous post,
intentionally, than the ICANN would be engaging in willful criminal activity.
>
>
> >ICANN, as a private corporation, is NOT above
> >the law. The best ICANN can do is abstain from those decisions due to
> >lack of legal competence.
>
> Okay. Now where in US trademark law does it says that one who deals in trademarked
>goods can close his/her/its eyes on grounds of lack of competence? There must be
>something else at work here :-)
It doesn't and it should not. That is for the challenger of that TM to determine
and seek legal redress to correct. It it the responsibility of the TM owner
to protect their TM to the extent reasonable. Any challenger of a TM of
a TLD, will be required to show "Lack of Competence". I would suggest
that doing so would be difficult and certainly subjective at best.
>
>
> >You have made such statements, regarding
> >NSI dispute resolution, yourself, many times, almost pedantically.
>
> Kent's context has been different. Kent has correctly observed that the best
>approach a domain name governance body can take is to steer as far away from
>trademark issues as possible, leaving those issues up to the courts and other
>tribunals which have the competence to resolve them.
>
> {snip}
>
> >Reference: Michie's Delaware Corporation Laws Annotated, 1996-1997 edition
> > Section 101 - A corporation may be incorporated or organized under this
>chapter to >conduct or promote and LAWFUL business or purpose, except as may
>otherwise be provided >by the Constitution or OTHER LAW of this State.
>
> Wowie. What an insight! All that this section (and its sister sections in other
>jurisdictions) accomplish is (1) allow the State corporation commissioner (usually
>the Secretary of State) to reject a corporation that has a patently unlawful purpose
>and (2) enable a state attorney general to maintain an action of quo warranto to
>dissolve a corporation which engages in unlawful activity. There's no private right
>of action for quo warranto. A shareholder can, in extremely rare circumstances,
>enjoin the directors of a corporation from engaging in unlawful activity, but there
>are very few decisions supporting that idea. Usually (something like 99.9% of the
>time), courts simply dismiss these actions saying, first, the business judgment of
>the board of directors is conclusive, second, if you don't like the decision, then
>sell your shares or change the composition of the board of directors, third, only the
>attorney general of the state has the power to dissolve a corporation for u!
> nlawful activities.
You seemed to have missed Roelands point, although he did not enunciate
it in and detail. Any STATE attorney general is legally required and obliged to
comply with a higher court's order, in this case the US district court, unless
it intends to appeal that ruling, whatever it may be with respect to a TM dispute
in conjunction with a TLD... Hence, your arguments here are not relevant
to Roeland's meaning...
>
>
> So, if you're really so all-fired sure that ICANN is proceeding illegally, there's
>every reason to suppose that the California attorney general's office would launch an
>investigation.
Again it is not a STATE issue, but rather it is a Federal issue. Hence, this
comment in both not relevant and does not apply directly. Should the US
District court order such and investigation or issue a a summary judgment to
the California State attorney general and the ICANN, it could and should do so
if the merits of the filed complaint of the TLD TM owner be held by that US
District court, to be of reasonable validity...
>
>
> Lotsa luck.
>
> >Annotation: Martin vs., D.B. Martin Co., Del Ch. 88A. 612 (1913)
> > The fiction of a legal corporate entity should be ignored when it has been
>used as a >shield for fraudulent or other illegal acts.
- snip remainder of irrelevant comments/response -
>
>
> Kevin J. Connolly
>
> <as usual, should any reader of this list pay any heed to the disclaimer which
>follows, you'll simply be disregarded :-)
>
>
>
>
Regards,
--
Jeffrey A. Williams
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail [EMAIL PROTECTED]
Contact Number: 972-447-1894
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208
