Bill Lovell wrote:
>
> __________
> There is agreement that mandatory ADR, particularly in cases of bad faith
> -cybersquatting -
> is the preferred approach to dispute resolution, subject to the proviso
> that an ADR decision
> would not preclude a party from seeking relief in court, and that the ADR
> decision would not
> be binding on a court having jurisdiction. The new "universe" of the
> Internet, with global, trans-
> national dimensions, makes it nearly impossible to expect national courts
> to deal with certain
> disputes that are bound to arise.
> __________
>
> There is much that could be said about this report, but the passage quoted
> above leaps
> out at me. It is assumed that one knows what "cybersquatting" means. Is
> this like
> Justice White's comment about obscenity -- "I can't define it but I know it
> when I see it?"
I like this analogy.
>
> The reference to "a court having jurisdiction" seems to recognize that
> DNSO, ICANN,
> etc., do NOT have jurisdiction over trademark aspects of domain names. I
> doubt that
> such acknowledgment was intended, true that it may be.
>
> Making it "nearly impossible to expect national courts to deal with certain
> disputes . . ."
> seems quite presumptuous: by what expertise does any ADR policy show that
> it could
> do any better? The text goes on to acknowledge a deep and resounding
> inability to
> deal with national trademark laws, so why is this process continuing?
Many of us have been asking the same question since 199x. I
personally have never had what I felt to be a satisfactory answer.
>
> Other than having inherited the notion from Network Solutions, what is the
> rationale
> for techies to get involved in trademark law in any event? One of the
> abiding features
> of the internet, which it seems to me should be protected at all costs, and
> without
> regard to whatever other inconveniences may arise therefrom, is that of
> full public
> access. What possible rationale can be advanced for the notion that in
> order for a
> person to become an internet participant, that person must agree in advance
> to give
> up certain rights that are established by the law of that person's country.
> In the U.S.,
> that counts as a restraint on free speech, and while governments have the
> authority
> to condition the use of public facilities such as telephones and the like
> upon acceptance
> of certain regulations, DNSO and ICANN certainly do not. To exact a price
> consisting
> of an abandonment of a constitutional right to seek redress in the courts
> as the ticket
> for entering into the internet as a domain name holder, by way of a
> contract of adhesion
> through which one is forever precluded from so entering unless the contract
> is signed,
> seems to me to be contrary to every universal principle of justice, and
> very likely an
> actionable offense. (Just because no one has yet had the wit to properly
> challenge NSI
> on its policy does not legitimatize that policy.)
>
> In short, I see at least some of the WIPO document, and some of this
> report, as
> having swallowed whole much of the "NSI common law of trademarks," in spite
> of the oft-repeated observations in U. S. Federal Court opinions that NSI
> cannot
> re-write trademark law. By sheer repetition, a mindset has been
> established in
> which the onus of abiding by various rules and policies is again placed on
> those
> who may be perfectly innocent domain name holders, while one NEVER sees
> any provisions through which a covetous trademark owner would be called to
> account for attempting to poach on a legitimate, lawfully acquired and
> lawfully
> held domain name.
>
> The playing field would seem still to be tilted precipitously.
Strong agreement here.
>
> Bill Lovell
--
Dan Steinberg
SYNTHESIS:Law & Technology
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Box 532, RR1 phone: (613) 794-5356
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