[ga] Jus Primae Noctis [Was: An interesting dissent to sunrise provisions]

["Roberto Gaetano" <roberto.gaetano@voila.fr>]

Hi.

I have to agree with Mikki (and I assume with William, 'cause he 
forwarded the post about the "sunrise" provision).

I am not a lawyer, so I can only discuss in practical terms, leaving the
 erudite speculation to the professionals ;>) but I do not understand 
why the Trademark Owners should have this additional privilege that 
reminds me more of the medioeval practices I hint in the title than of 
modern law. I hope that everybody will understand that the parallel is 
made only for the sake of discussion, and nobody will feel offended.

In fact, it is a little bit like here in Vienna for the subscribers to 
the Konzerthaus: they pay a subscription fee, and have the right to book
 tickets for the concerts one month earlier than the others.
The difference is that, in the case of the Konzerthaus, everybody can 
become a member, and have this privilege for the concert season (indeed,
 this is what I am going to do myself next year).

Jokes apart, the only reason why the Trademark owners would have this 
"competitive advantage" over the rest of the world is the presumption 
that the rest of the world is made of wrong-doers, that will pirate 
Trademark rights for their illegal benefit.
And even if this would be true, why can't we act legally "after the 
fact", if the law has been broken? Don't we have the UDRP, that takes 
care of this?
We are submerged by TV serials (yes, in Europe too) about the good 
detective that cannot arrest the suspected robber (or terrorist, or 
murder, depending on the serial) or even take positive action to try to 
avoid him/her committing the illegal action because "you're presumed 
innocent until proven guilty". Why are we "presumed guilty of stealing 
Trademarks before proven so"?

The reality is, IMHO, that that IPC feels able to block any opening of 
new gTLDs unless the conditions are what they want.
I, personally, had some doubts about the UDRP, but have taken the 
position that the provisions were globally reasonably fair, and that a 
Uniform, worldwide procedure would have been better than to be subject 
to "local" laws. But also, I was sure that this would have settled the 
problem of Trademarks for good.
I was even willing to accept "obtorto collo" the Famous Mark list 
(provided that the size thereof was between 100 and 1000), but this "jus
 primae noctis" on new gTLDs, frankly, is the last straw on the camel's 
back.

To the Registrars, that are willing to compromise in view of the 
possible delegation of new gTLDs, I would like to ask whether they are 
sure that there will be no other roadblocks that will vanify this 
compromise.

Regards
Roberto
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