RE: [ga] NewZealand.com WIPO decision

["Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>]

Surely there is a difference anyone can see between (a) fraud ("made in
Mexico" when it is not true) (b) just about every other use.  If I create
a home network and call my computer "Betsy" I'm not claiming it's alive.  
If I call it "Mexico" I'm not making any claim about it either.  If my
university has a server and calls it Mexico that's not a claim about it's
origins or locations.  I live on Urbino Ave. in a community full of
Italian street names.  No one thinks this suggests I live in Italy.

Domain names are labels, like network names, city names, street names.
They are arbitrary; hence there is no semantic connotation deriving from
the label.  (There might be from *use*, but not from the label; that's
another way in which your fradu example goes wrong.)

Incidentally, please make an attempt to be more precise. If I am the
registrant of StateName.com, my legal position is identical to that of the
restaurant.  I'm not a subject of public international law; I'm a person.
Ditto for the registrar and registry.  Public international law reaches my
conduct if and only if (A) my conduct is a crime against humanity or other
fundamental international law (e.g. piracy on the high seas, war crimes)
-- clearly not applicable here; or (B) my state is (or feels) compelled by
some principle of international law to punish my conduct [pass over
whether the principle is self-executing or not, and assume the state is
very punctilious in meeting its international obligations.]  Now, if you
want to tell me that the US, the UK, or Mexico has *an obligation* under
international law to sanction my conduct in registering StateName.com, it
is incumbent on you to explain where this obligation comes from.

We are still waiting for someone, anyone, to even begin to outline what
this argument would look like.

On Thu, 19 Dec 2002, Rodrigo  Orenday Serrato wrote:

> Alright, then. You speak of:
> 
> 1) a place in Wellington called "The Mexican Cantina". Nothing wrong with
> calling something "Mexican", if it is (or attempts to be or pass for)
> Mexican, so long as you don't claim it has any percentage of Mexican content
> in it, or that is was made in Mexico if it wasn't. That's exactly what the
> word's meant for, it an adjective indicating nationality or origin.
> 
> 2) anotheroner called "Texas". Big deal; political subdivisions of a
> federated State, such as the USA, are not subjects of Public International
> Law, remember?.
>

The point you ignore is this is also true of individuals, including domain
name registrants. Like a political subdivision they are not subjects of
international law.  Thus, both the person and the subdivision stand in THE
SAME RELATION to the state as regards the transmission mechanism for their
obligations, and the means by which compliance might be demanded of them.
Having conceded that the subdivision has no duty to respect the supposed
sanctity of a foreign state name, you also ipso facto conceed the same as
to the individual.
 
> Plus you say (quote) "I am not aware of any principle which operates to give
> states the power of preventing use (or even misuse) of their country name or
> confusing
> variants." (unquote).
>

> Well then, what about foreign trade laws that enforce national content or
> country of origin requisites?. If someone puts "made in Mexico" on something
> that wasn't made in Mexico (and wouldn't that be missuse of the name
> "Mexico"?), that person might be in for trouble, don't you think?.
> 
> Atentamente, Regards
> Rodrigo Orenday Serratos
> 
> -----Mensaje original-----
> De: barrister@chambers.gen.nz [mailto:barrister@chambers.gen.nz]
> Enviado el: Jueves, 19 de Diciembre de 2002 07:32 PM
> Para: 'Michael Froomkin - U.Miami School of Law'; 'Rodrigo Orenday
> Serrato'
> CC: ga@dnso.org
> Asunto: RE: [ga] NewZealand.com WIPO decision
> 
> 
> On 19 Dec 2002 at 17:40, Rodrigo  Orenday Serrato wrote:
> 
> S@dnso.org>
> Subject:        	RE: [ga] NewZealand.com WIPO decision
> Date sent:      	Thu, 19 Dec 2002 17:40:03 -0600
> 
> > Amazed again?. Professor, we'd been over this one before, remember?.
> >
> Have to say I am with Professor Froomkin on this one.
> I am not aware of any principle which operates to give states the power of
> preventing use (or even misuse) of their country name or confusing
> variants.
> 
> If this were true, my law school frriend coudn't have opened, as he
> succesfully did, a restaurant in Wellington known as the Mexican
> Cantina...add to that other Wellington shops like Paris, Texas (no "other
> characters capable of making  it sufficiently distinctive")
>  multiply examples like that around the world, and you see how
> impractical the suggestion would be, if it were true.
> 
> Regards
> Peter Dengate Thrush
> 
> > If you're looking for ICJ precedents and so, I know of none such; I
> > would argue this on the grounds of international custom and committee.
> > Period.
> >
> > Atentamente, Regards
> > Rodrigo Orenday Serratos
> >
> >>
> > And on what existing principle of public international law do you
> > ground this amazaing assertion?
> >
> > On Thu, 19 Dec 2002, Rodrigo  Orenday Serrato wrote:
> >
> > > Notwithstanding this decision, I still sustain that the naming of
> > Sovereign
> > > States is a matter of public international law and public interest,
> > > and
> > that
> > > no one but a State should be allowed to use neither its official
> > > denomination nor its common name, absent other characters capable of
> > making
> > > it sufficiently distinctive.
> > >
> > > Atentamente, Regards
> > > Rodrigo Orenday Serratos
> > >
> > >
> > > -----Mensaje original-----
> > > De: owner-ga@dnso.org [mailto:owner-ga@dnso.org]En nombre de Marc
> > > Schneiders Enviado el: Jueves, 19 de Diciembre de 2002 03:35 PM
> > > Para: Steven Heath CC: ga@dnso.org Asunto: RE: [ga] NewZealand.com
> > > WIPO decision
> > >
> > >
> > > On Fri, 20 Dec 2002, at 09:27 [=GMT+1300], Steven Heath wrote:
> > >
> > > > Even more interesting to read the BNA Law summary of the decision:
> > > >
> > > > Further, the panel termed the action "baseless" and "misconceived"
> > > > as it unanimously found that the government engaged in reverse
> > > > domain
> > name
> > > > hijacking in bringing the action."
> > >
> > > Congratulations to the NZ government. I don't think any other
> > > government has been declared to be a domain name hijacker. (The
> > > decision occurs very rarely and governments/city councils tend to
> > > win.) A Book of Records entry for the country named after a province
> > > in mine!
> > >
> > > The fact that the NZ government did file the complaint, shows that
> > > even among those elected by the people, attempting theft is not a
> > > big deal. Or is it that the UDRP, as applied, is succeeding in
> > > misleading good politicians into believing Everything Trademark
> > > Lawyers Dream of When They Do Not Have a Nightmare?
> > >
> > > Is there any progress to report about the pending review of the UDRP
> > > by ICANN, due for end 2000?
> > >
> > > Will the evaluation of new gTLDs also take so long to get going? I
> > > hope not.
> > >
> > > There are some facts we best ignore, right?
> > >
> > > --
> > > [01] All ideas are vintage not new or perfect.
> > > http://logoff.org/
> > >
> > > --
> > > This message was passed to you via the ga@dnso.org list.
> > > Send mail to majordomo@dnso.org to unsubscribe
> > > ("unsubscribe ga" in the body of the message).
> > > Archives at http://www.dnso.org/archives.html
> > >
> > > --
> > > This message was passed to you via the ga-full@dnso.org list.
> > > Send mail to majordomo@dnso.org to unsubscribe
> > > ("unsubscribe ga-full" in the body of the message).
> > > Archives at http://www.dnso.org/archives.html
> > >
> > >
> >
> > --
> >   Please visit http://www.icannwatch.org
> > A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm U.
> > Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA +1
> > (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
> >                         -->It's warm here.<--
> >
> > --
> > This message was passed to you via the ga@dnso.org list.
> > Send mail to majordomo@dnso.org to unsubscribe
> > ("unsubscribe ga" in the body of the message).
> > Archives at http://www.dnso.org/archives.html
> >
> 
> 

-- 
		Please visit http://www.icannwatch.org
A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
                        -->It's warm here.<--


--
This message was passed to you via the ga-full@dnso.org list.
Send mail to majordomo@dnso.org to unsubscribe
("unsubscribe ga-full" in the body of the message).
Archives at http://www.dnso.org/archives.html