I hope this doesn't sound like I'm picking on RG here, because I don't mean
to. I think his comments are always interesting and very frequently useful.
This one, however, seems to exemplify a common misunderstanding of the WIPO
proposal that I would like to correct. While the WIPO proposal offers a
common, world-wide, definition of the elements of a cybersquatting claim, there
is one point in the definition that relies entirely on national law. As a
result the definition is not one-size-fits-all for the world. This gets
complicated, so bear with me.
One of the elements of the offense is that the alleged cybersquatter "has no
rights or legitimate interests in respect of the domain name". Whether this is
true or not is going to be a question of national law. For example, some
jurisdictions provide for common law trademarks, and some do not. Some
jurisdictions provide far more robust rights to fair use than others. Some
jurisdictions protect political commentary and parody more than others. Cases
which touch on any of these or similar issues (i.e. cases which have a flavor
of 'reverse domain name hijacking' as opposed to the most clear-cut cases of
abuse), will thus turn on issues of national law.
I don't know the law that well in the area of political parody in the US, much
less abroad, but I wouldn't be at all surprised to learn that California law
produces a different result on these facts from the UK and France, not to
mention North Korea. Indeed, in some cases (but probably not this one)
California will differ from New York....
I happen to think this is the only just system. I don't think it would be
fair for bodies such as ICANN (or WIPO) to subject the citizens of you-name-it
to California's ideas of intellectual property, or even of political freedom.
Or vice versa.
[EMAIL PROTECTED] wrote:
> Karl Auerbach wrote:
> >
> > So if Willy can demonstrate under existing laws that there is
> > a violation
> > to his right of publicity, common law trademark, that the other use is
> > false advertising or interferes with a prospective advantage,
> > or is unfair
> > competion, then fine.
> >
> > It appears that we need not add any special new rules in the
> > domain name
> > arena to deal with this situation.
> >
>
> Probably not in the US, but we surely need the same legislation to apply
> worldwide.
> I would like to be sure that the willybrown case is treated in the same way
> as jacquesdupont or mariorossi or fritzmeier or azizjamal, wherever the
> plaintiff, defendant and Registry are located.
>
> And this, to the best of my (low) understanding of legal matters, can be
> achieved only via international agreements (WIPO, for instance).
> N.B.:I exclude as most unpractical the other option, i.e. forcefully apply
> US law worldwide ;>).
>
> Please note that here I am not defending the WIPO proposal as is, I am just
> claiming that the only stable solution can come by an international
> agreement, and that in this context WIPO seems to me to be the most obvious
> body.
>
> Regards
> Roberto
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A. Michael Froomkin | Professor of Law | [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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