At 06:57 PM 4/14/99 +00-04, you wrote:
>
>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?
Your reasoned response is appreciated, but my points remain.
(1) I've previously advocated taking things one at a time, by which
I mean resolving the situation in a single context first, and using
that as a model, before trying to tackle the ROW;
(2) The inescapable fact remains that even since Paul Revere put
his mark on his silver, U. S. trademark law has followed a pretty
straight path, arriving now at the Lanham Act. The common law
as to what are or are not legal rights has followed a similar course.
All of these proposals act as though the groups advocating this or
that are writing on a clean slate: the slate is not clean; the law of
trademarks is established, and no group of netizens or WIPO or
"arbitrators" or "ombudsmen" or whatever have the authority to
change even one comma thereof without going through the U. S.
Congress, etc., etc. The internet is not the Wild West, however
much it may be romanticized as the "New Frontier" or whatever.
>
>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*.
With respect to clarity, I'm still trying to figure out what the following
means:
>>In paragraph 99 in kind of in the spirit of the document
>>throughout that essentially freeze court decisions and domain
>>name trademark conflicts in early 1997.
I realize that that was a transcript of a speech, with all the dangers
inherent therein, but the fact remains, who knows what that means?
(The real issue of course is not clarity but content.)
>
> 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*.
Quit pretending that this or that cabal of netizens has the authority
to rewrite the law books on their own, and instead use the existing
processes of the law: look at the addendum to my NTIA remarks,
in which an existing mechanism is proposed to be used.
>
>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.
>
An ombudsman group whose expertise in trademark law is . . . ?
Whose authority to repeal existing law derives from . . . ?
>
>I, for one, would like to think that whether it follows Kathy's layout
>exactly or not, *once any such a system proves itself*,
A nullity cannot prove anything, and any system that is set up that
presumes on its own to negate existing law is precisely that. It is a
romantic notion -- Robinson Crusoe on a desert isle who only has
to accommodate things with Friday -- that belies real world facts.
most jurists
>would not take a case in contravention of its authority.
Federal District Court Judges will defer to the wisdom of a bunch
of unproven intermeddlers in the law? I think not. (In any case,
one files the case and the judge is stuck with it; if an opposing
side wants the case dismissed it can so file a motion; that motion
will require a memorandum of law that sets out why the case
should not be heard; that memorandum must cite proper authority
that proves the point; what this or that bunch of ombudsmen
might have been doing is not authority for anything.)
What you refer to as 'legalistic clutter' is what the real world now
has, and it cannot be avoided. This is a world of law, not "men,"
as the saying goes, and no group can set itself up to be above
that law.
(This whole bit reminds me of when I was working in the lab of
a chemical plant in my undergraduate days. This mockus idiot
came in the door and told me that a vote had just been taken
and the plant workers had voted to unionize, so I was now in
this union. I told him to go fly a kite. He asks, "don't you
believe in democracy?" So I said, "Of course I do. One of its
fundamental tenets involves 'the consent of the governed,' by
which all parties involved have agreed to be bound by the results
of the election. I don't remember anyone asking me if I would
consent to be so bound, and without that, you can stuff your
election." We were not unionized.)
I'll not be consenting to be bound by any of these schemes that
bypass the law.
Bill Lovell
