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Re: [wg-b] food for thought
The neutral fame claim is not a demand letter and I indicated that the
cover letter from the list administrator should indicate that it is not a
legal claim, so as to avoid the "chilling effect" that had been referred to
previously on the list. A fame claim that is delivered simultaneously with
DN registration (or better, simultaneously with acknowledgement of the
receipt of an application for a DN) has the effect of creating actual
notice on the part of the DN registrant. This has two effects - the honest
DN applicant now has information as to whether it wishes to proceed with
investing money in that domain name, and the dishonest DN applicant can no
longer state that "I didn't know that XYZ was [doing business in my
country] [selling widgets] [had been held to be famous in a court
proceeding] before I invested X money in the DN." They can still state "I
did know about [famous mark] but I don't think I'm pirate for the following
reasons."
The fame claim will therefore, if it works as expected, effect behavior in
two ways - there will be somewhat fewer "unintended" conflicts where
somebody stumbled into a conflict and second, the tribunal will not spend
time on one type of psecious argument endemic to famous mark piracy.
p.s. lots of people ignore demand letters. It's their way of saying "so
sue me."
At 01:31 PM 9/27/99 -0400, you wrote:
>No one ignores a cease and desist letter unless their attorney finds it
doesn't
>merit a response.
>
>Judith
>
>"DEUTSCH, SARAH B." wrote:
>
>> If the cost is cheap, that's great. What do the registrars have to
>> say? The neutral warning to me is only of some value if it is
>> triggered BEFORE the registration actually occurs. Even if you have
>> no intent to infringe, the warning will not by itself cause people to
>> give up the name. We find that in the vast majority of our cases, our
>> cease and desist letters are ignored. So, I'm not overly optimistic
>> that the warning by itself would change any behavior.
>>
>> For the cybersquatters, I agree that the warning would be ignored
>> regardless.
>>
>> ______________________________ Reply Separator
>> _________________________________
>> Subject: Re: (wg-b) RE: (wg-b) food for thought
>> Author: "d3nnis" <SMTP:d3nnis@mciworld.com> at GCOHUB
>> Date: 9/25/99 2:06 AM
>>
>> ----------
>> > I think the warning system is certainly worth exploring as a
>> > supplement -- not a replacement -- for the proactive exclusion. Has
>> > anyone vetted the idea with the registrars and determined the costs
>> or
>> > technical feasibility of implementing such as system? I think the
>> > registrars would reject the idea because it would require them to
>> slow
>> > down their systems by adding an additional step in the automated
>> > registration process in which all domain name registration requests
>> > are referred to a centralized database, which would then do a check
>> > and spew back the warning.
>>
>> Thanks for the interesting answer.
>>
>> I should have been clearer in my question: my curiosity concerns how
>> you feel about the effectiveness of neutral warnings.
>>
>> I tend to think that a neutral warning given to a registrant who has
>> no intentions of infringing is likely to ensure that infringement doesn't
>> occur ... and to magnify the impact of any cease and desist letter that
>> might be issued by a trademark holder afterwards.
>>
>> For someone planning to engage in infringement, the warning would
>> clearly have no impact, I realize. Your agreement/disagreement on this
>> point would be interesting to hear.
>>
>> Parenthetically, I tend to disagree with you on the cost factor (though
>> I'm no expert). A neutral warning system wouldseem by definition to
>> be far cheaper andmore automated than an exclusion mechanism if one
>> were forced to choose between the two, IMHO.
>>
>>
>> Regards
>>
>> Dennis Schaefer
>>
>>
>>
>>
>> >
>> > A key question is when the warning would take place -- before or
>> after
>> > the applicant has submitted its application and fee. If the
>> applicant
>> > receives the warning after the automated process -- the warning is
>> > virtually useless. After paying the bucks, few domain name holders
>> > would voluntarily relinquish their domain name registrations. They
>> > would still wait for the trademark owner to come after them and sue.
>> >
>> > The proactive exclusion helps protect their essential famous
mark. I
>>
>> > am open to the idea of the pre-registration warning system, if
>> crafted
>> > properly, as a way to protect all the cybersquatting on
variations of
>>
>> > famous marks.
>> >
>> >
>> > ______________________________ Reply Separator
>> > _________________________________
>> > Subject: Re: (wg-b) RE: (wg-b) food for thought
>> > Author: "d3nnis" <SMTP:d3nnis@mciworld.com> at GCOHUB
>> > Date: 9/23/99 8:40 AM
>> >
>> >
>> > Sarah --
>> >
>> > I would value hearing your viewpoint on the use of neutral
>> > warning system as discussed a couple days ago.
>> >
>> > My apologies if you already have done so: mailbox problems
>> > have caused me to lose mail recently.
>> >
>> > I understand you prefer to have an exclusion process. My questions are:
>> > in the absence of an exclusion process, would you favor a warning system?
>> >
>> > And, with or without an exclusion process, do you feel that a warning
>> system
>> >
>> > is practicable?
>> >
>> > Regards
>> >
>> > Dennis
>> >
>> >
>> >
>> > ----------
>> > > The latest draft of the UDRP is fatally flawed. It provides no
>> real
>> > > remedy for trademark owners and in my opinion will not be used
>> unless
>> >
>> > > drastic changes are made. Contrary to the statement made below,
>> the
>> > > latest draft of the policy does not give the trademark owner the
>> > right
>> > > to challenge any registration that is confusingly similar -- the
>> > > standard under US trademark law. Trademark owners must prove,
>> among
>> > > other hurdles, that the domain name was registered PRIMARILY for
>> the
>> > > purpose of disrupting business of a COMPETITOR; or that the domain
>> > > name holder attempted to attract for FINANCIAL GAIN, users to its
>> > site
>> > > by INTENTIONALLY creating confusion by using a mark that is
>> > > SUBSTANTIALLY IDENTICAL to the trademark or service mark.
>> > >
>> > > As you can see, this test is totally unacceptable. If this is the
>> > > policy, no one will use it.
>> > >
>> > >
>> > > ______________________________ Reply Separator
>> > > _________________________________
>> > > Subject: Re: (wg-b) food for thought
>> > > Author: "Milton Mueller" <SMTP:mueller@syr.edu> at GCOHUB
>> > > Date: 9/23/99 2:10 PM
>> > >
>> > >
>> > > This discussion is proceeding as if the alternative to famous marks
>> > > exclusions is pure court litigation. That is not correct.
>> > >
>> > > We cannot lose sight of the fact that a Uniform Dispute Resolution
>> Policy,
>> > > which ICANN is in the process of adopting, will give famous mark
holders
>> > the
>> > >
>> > > following:
>> > >
>> > > a) accurate and complete contact info of all registrants
>> > > b) right to identify and challenge any registration that is
identical to
>>
>> > or
>> > > "confusingly" similar to their mark in a process that is much less
>> > expensive
>> > >
>> > > and faster than the courts.
>> > >
>> > > I don't see what exclusion adds to that process, except additional
>> > expense,
>> > > bureaucracy, and opportunities for abuse of domain name holders.
>> > >
>> > > Roeland M.J. Meyer wrote:
>> > >
>> > > > Famous marks, because they are famous, also have the wherewithall to
>> > > > defend their marks. Start-up enterprises do not have this, but they
>> also
>> >
>> > > > do not yet have a mark, or brand, to defend yet.
>> > >
>> > > --
>> > > m i l t o n m u e l l e r // m u e l l e r @ s y r . e d u
>> > > syracuse university http://istweb.syr.edu/~mueller/
>> > >
>> > >
>> >
>> >
>
>--
>Judith Oppenheimer, 1 800 The Expert, 212 684-7210
>mailto:joppenheimer@icbtollfree.com
>Publisher of ICB Toll Free News: http://icbtollfree.com
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>President of ICB Consultancy: http://JudithOppenheimer.com
>
>
>
>
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