Re: [ga] newyorkyankees.com suit

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

"Unique they may be, but not terribly famous on this side of the pond."

Here we run into a familiar problem.  The laws of the nations of the world
define famousness in strictly national terms.  WIPO sought to craft a
procedure that required a new category of globally famous marks, but for
what I think are political reasons people sometimes obscure this.  There
are a lot of people (or people with clients) who hold nationally famous
marks and think they should have a prior right to their domain
name even in a trans-national medium.

There are a lot of problems with this expansive view.  One, of course, it
that it expands the rights of (national) famous marks well beyond their
intended scope.  And if even WIPO wouldn't wear it...

Another problem is that it is quite possible, and far from unheard of, for
two different firms to have a famous mark that is the same word in
different nations.

While I think that Harald's analysis on his web site of the applicability
of famous marks to the net is about right, my fallback view is that
whatever is done absolutely must limit its reach to GLOBALLY famous marks
-- and many, probably most, of the thousands and thousands of NATIONALLY
famous marks won't qualify.

All that said, if the defendant in this case is a US person, then it seems
quite appropriate to use US law.  And the NY Yankees are arguably the most
(in)famous baseball team in the US.  

Furthermore, if the domain name was registered in the US, the US Congress
in its wisdom has decided that the issue can be adjudicated in a US court.  
US choice of law principles will then apply, as will US famousness.  [If
the basis for jurisdiction against a foreigner is in rem, odds are US law
applies.  If the basis for jurisdiction is minimum contacts, it gets
complex.  There are no cases that I know of which provide direct guidance
on what law applies when the defendant in an alleged cybersquatting case
is foreign and there is minimum contacts jurisdiction.  It would depend on
the facts.]

On Wed, 29 Dec 1999, Harald Tveit Alvestrand wrote:

> At 15:18 29.12.99 -0500, Martin B. Schwimmer wrote:
> >The registrant may in fact be a Mets fan.
> >
> >http://www.nypost.com/business/20655.htm
> >
> >NEW YORK YANKEES would be an example of a unique famous mark.
> Pardon?
> This side of the pond, I don't even know if they play baseball, oval-ball 
> football or some other game.
> Unique they may be, but not terribly famous outside the US.
> 
>                         Harald A
> 
> --
> Harald Tveit Alvestrand, EDB Maxware, Norway
> Harald.Alvestrand@edb.maxware.no
> 
> 

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A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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