Re: [ga] ICANN benefits

[Kent Crispin <kent@songbird.com>]

On Sat, Apr 07, 2001 at 11:14:03AM -0700, Tim Langdell, PhD wrote:
[..]
> > > Also, multiple non-conflicting uses -- as in Sun Oil and Sun
> Microsystems,
> > > both valid trademarks in at least the US -- should be explicitly
> allowed.
> >
> > It is.
> 
> I presume you meant "they are". But the point being made was that currently
> only one entity can have (say) "sun.com" even though there might be equal
> claimants on the name (Sun Oil and Sun Microsystems to name but two). So the
> answer is "they are not allowed".

The fact that the domain name system provides unique names is a given,
and that was not the question.  (Or if it was the question, then the
answer is "it's irrelevant" -- a fundamental change to the DNS is
irrelevant to ICANN at this point in time.) I was assuming the relevant
question, which is: "Is 'multiple conflicting uses' allowed for in the
UDRP?".  It is. 

> > > The burden of proof for alleged conflict is on the complainant.
> >
> > It is.
> 
> Not so if the system makes any basic assumption at all as to fundamental
> rights.

I view "burden of proof" as an objective matter of procedure, and
largely independent of assumptions about "fundamental rights".  The
system is an arbitration system, for resolving disputes.  The
complainant must make a showing of (as I recall) that three basic
conditions exist; the respondent will contest those.  But an arbitrator
could throw out a complainants case simply on the grounds that the
complainant had not established that the three conditions exist. 

> For instance if one assumes that ownership of a "registered"
> trademark gives some fundamental right then the burden of proof switches to
> the defendant, which to some seems unfair.

Fair or unfair, true or not, it doesn't switch the burden of proof.  
The complainant must still make his case.  A reversal in the burden of 
proof would be where any complainant is automatically given the domain 
unless the defendant proved that he should not be.

It is true that in some of the bad decisions the arbitrator seems to be
careless about whether the complainant really makes their case; many
people think that the UDRP rules should be made more clear in several
areas. 

> To other seems entire fair. Where
> it gets complicated is that you do not have to have a registered trademark
> in any given country to "own" a trademark. You can claim rights based on
> common law entirely legitimately.

...in some jurisdictions.

-- 
Kent Crispin                               "Be good, and you will be
kent@songbird.com                           lonesome." -- Mark Twain
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