RE: [ga] 4th Circuit Court of Appeals Reverses Barcelona.com Decision

["Rodrigo Orenday Serrato" <rorenday@banxico.org.mx>]

"The one thing that I have gained increased knowledge of over the years
is that legal system does not have to be rewritten because of the
Internet. There will have to be some tweaks, but the legal system has
been able to assimilate its existing body of law to handle other
technology developments over time."

Michael, I agree with you to some extent on the foregoing. In its 1998
report on the Net, the Conciel d'Etat Fancise stated that the Net is an
environment wherein all laws may apply, even in its present state. 

However, I have my doubts as to whether the solutions to which we may
arrive by applying such laws, unamended in order to meet with the
requirements of ITC are the proper solutions; that is to say, whether or
not they are just and fair, considering that they may not always contain
sufficient elements to comprise all interests at stake in a given case,
as the underlying policy quite probably did not address them at the time
such provisions were drafted.




Atentos Saludos, Best Regards,
RODRIGO ORENDAY SERRATOS


-----Mensaje original-----
De: owner-ga@dnso.org [mailto:owner-ga@dnso.org] En nombre de Michael D.
Palage
Enviado el: Martes, 03 de Junio de 2003 07:47 AM
Para: richard.hill@itu.int; john@johnberryhill.com; ga@dnso.org
Asunto: RE: [ga] 4th Circuit Court of Appeals Reverses Barcelona.com
Decision


Richard,

After my first reading of the decision I tend to agree with your
analysis.

When the City Council decided to file the UDRP they consented under
3(b)(xiii) of the UDRP Rules to "submit, with respect to any challenges
to a decision in the administrative proceeding canceling or transferring
the domain name, to the jurisdiction of the courts in at least one
specified Mutual Jurisdiction" Mutual jurisidiction is defined under the
Rules as "a court jurisdiction at the location of either (a) the
principal office of the Registrar (provided the domain-name holder has
submitted in its Registration Agreement to that jurisdiction for court
adjudication of disputes concerning or arising from the use of the
domain name) or (b) the domain-name holder's address as shown for the
registration of the domain name in Registrar's Whois database at the
time the complaint is submitted to the Provider."

Therefore, the City Council could have initiated legal proceedings
against the domain name registrant in Spain under Spanish law. Instead,
they choose the UDRP and the registrant exercised the mutual
jurisdiction provision under the Rules. You will note procedurally in
the opinion, that the City Council raised jurisdictional challenges to
the domain name registrant's other claims.

I think the Court of Appeals got it right, and should the City Council
obtain a judgment in Spain then things could get a little more
interesting. However, what people forget is that there is already an
existing body of law on how to handle this situation.

Unfortunately there are going to be a lot of arm chair
"lawyers/quarterbacks" attempting to read more into this decision than
there is. The one thing that I have gained increased knowledge of over
the years is that legal system does not have to be rewritten because of
the Internet. There will have to be some tweaks, but the legal system
has been able to assimilate its existing body of law to handle other
technology developments over time.

Just my two cents for what it is worth.

Mike






> -----Original Message-----
> From: owner-ga@dnso.org [mailto:owner-ga@dnso.org]On Behalf Of 
> richard.hill@itu.int
> Sent: Tuesday, June 03, 2003 6:03 AM
> To: john@johnberryhill.com; ga@dnso.org
> Subject: RE: [ga] 4th Circuit Court of Appeals Reverses Barcelona.com 
> Decision
>
>
> Under US law, says the US court.
>
> But what about Spanish law?  Not applicable in US court, because of 
> ACPA and the general principle of territoriality of trademark law, 
> says the US court.
>
> However, I suppose, the City Council of Barcelona could bring an 
> action in Spanish courts, under Spanish law, if it felt that the 
> activities exercised under the disputed domain name were violating 
> Spanish law in Spain.
>
> If such an action suceeded in Spain, then the question of whether or 
> not the Spanish court's decision could be enforced in the US is 
> probably a complicated question.
>
> Best,
> Richard Hill
>
>
>
> > -----Original Message-----
> > From: John Berryhill Ph.D. J.D. [mailto:john@johnberryhill.com]
> > Sent: Monday, 02 June 2003 22:43
> > To: [GA]
> > Subject: [ga] 4th Circuit Court of Appeals Reverses Barcelona.com 
> > Decision
> >
> >
> >
> > As if anyone needed to know, "Barcelona" is not a trademark of the 
> > City of
> > Barcelona:
> >
> > http://pacer.ca4.uscourts.gov/opinion.pdf/021396.P.pdf
> >
> >
> > It looks like an update will be needed here to avoid false
> > advertising:
> > http://www.oblon.com/barcelona/
> >
> >
> >
> >
> >
> >
> > --
> > 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@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@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@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