Bill,
Far be it from me to presume knowledge of the law -- but as I
understand, there is no international trademark law. USPTO is all
very well in the USA, but what about the ROW?
Recognizing that all the legal argument in the world will not wish
away the fact that there is a lot of confusion, that a lot of venues
are being involved, that cases are being brought and decided on
very airy grounds, and that a lot of people are looking for a place to
make a name for themselves as 'internet lawyers,' the value of
Kathy Kleiman's remarks, as I read them, lies in their *clarity*.
Is there a problem? Will there be disputation? Yes there is, and
will be, because these days perception *is reality (as Greg avers, if
people think domain names are valuable then they are valuable). Is
there a simple solution? No, because everybody has different
perceptions -- and thus I highlighted Ms K's statement: the real
issue is HOW DO WE SOLVE THE PROBLEM *TOGETHER*.
Do we do it by creating a top-heavy, and heavy-handed, *legal*
procedure? No, she suggests, that will never meet the desiderata
of being cheap and quick and effective. Instead, put together what
might be called an ombudsman group: have the disputants show
cause, and *decide whether a case is piracy or infringement or
whatever *on its merits*. Whether the muscle of WIPO is
necessary or not is beside the point; if the consortium of registrars
accept the process, that is what matters: therefore the way out is
to have an acceptable (and comprehensible!) Process.
----------------
You wrote,
> ...the authors of this PROPOSAL [give] the distinct impression
> that the community of registered trademark owners has already laid
> out its path in the language "where a trademark is unlawfully used
> as a domain name, consumers may be misled about the source of the
> product or service offered on the Internet, and trademark owners
> may not be able to protect their rights without very expensive
> litigation."
>... The erroneous presumptions
> implicit in the remark are that (a) between the domain name and
> the mark there exists an actual likelihood of confusion whereby
> the domain name registration becomes "unlawful" ipso facto;
> and (2) if there is indeed a real trademark dispute, the owner of
> a registered mark must necessarily prevail. Neither of these need
> be the case.
I, for one, would like to think that whether it follows Kathy's layout
exactly or not, *once any such a system proves itself*, most jurists
would not take a case in contravention of its authority. In that
respect, then, the argument is all on the side of getting it up and
running, precisely to keep the legalistic clutter from getting any
worse than it is at present. If it should prove, over time, that there
is no real confusion, that the point I believe Mike Sandow made
more than once in the WIPO hearings -- that precious few sales
are in fact lost to 'diluting' names, that the more 'efficient' route is to
concentrate on business and not names, and that thus the
omsbudsman group will wind up with a very sparse docket of
cases, that to my mind would be an infinitely better outcome than
the kind of perpetual litigation some of the other lines of thinking
only encourage.
kerry
