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[wg-b] Bounced Posting From Mark Measday (re-submitted)
Re: Position papers: 'res publica'
As a general theoretical and conceivably incorrect observation, one of the
problems with finding consensus in wg-b is the absence of mention by any of
the proponents of famous mark 'exceptions' of incorporation of public law
limitations on their application.
1. The NCDNH paper puts forward no US-based public international law
limitations on the 'exceptions'.
2. The WIPO SCT cannot resolve the problem of the historic
territoriality of trademark law, and begs for an international mandate for
reconciling this with the necessary uniqueness of DNS.
3. The language of rights found in the relevant international charters is
therefore not applicable to the likely forum of jurisdiction of most cases.
4. There is no clear reference to the 'public interest' in any of the
commercial submissions, or that the burden of proof for a famous mark might
be counterbalanced against a need for free speech. Although the burden of
proof always falls upon the putative mark holder, there does not seem to be
any defence that it may be against the public interest for that mark to be
held.
Yet, were, say the IPC, to incorporate such a concept into its paper and
further submissions, a complete consensus might be created.
The necessary reason for their inclusion is the uniqueness of (2) above,
which, as all agree, differs in kind from the historic basis of deciding
these issues. Hence the need for (3) and (4).
Can someone clarify whether any US court has cited US international treaty
obligations as relevant in a relevant domestic case? If not, one would
assume that international users of gTLDs would beware.
This is not a statement of personal opinion.
MM
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<font size=-1>Re: Position papers: 'res publica'</font>
<p><font size=-1>As a general theoretical and conceivably incorrect
observation, one of the problems with finding consensus in wg-b is the
absence of mention by any of the proponents of famous mark 'exceptions' of
incorporation of public law limitations on their application.</font>
<p><font size=-1>1. The NCDNH paper puts forward no US-based public
international law limitations on the 'exceptions'.</font> <p><font
size=-1>2. The WIPO SCT cannot resolve the problem of the historic
territoriality of trademark law, and begs for an international mandate for
reconciling this with the necessary uniqueness of DNS.</font> <p><font
size=-1>3. The language of rights found in the relevant international
charters is therefore not applicable to the likely forum of jurisdiction of
most cases.</font> <p><font size=-1>4. There is no clear reference to the
'public interest' in any of the commercial submissions, or that the burden
of proof for a famous mark might be counterbalanced against a need for free
speech. Although the burden of proof always falls upon the putative mark
holder, there does not seem to be any defence that it may be against the
public interest for that mark to be held.</font> <p><font size=-1>Yet, were,
say the IPC, to incorporate such a concept into its paper and further
submissions, a complete consensus might be created.</font> <p><font
size=-1>The necessary reason for their inclusion is the uniqueness of (2)
above, which, as all agree, differs in kind from the historic basis of
deciding these issues. Hence the need for (3) and (4).</font><font
size=-1></font> <p><font size=-1>Can someone clarify whether any US court
has cited US international treaty obligations as relevant in a relevant
domestic case?
If not, one would assume that international users of gTLDs would
beware.</font><font size=-1></font>
<p><font size=-1>This is not a statement of personal opinion.</font>
<p><font size=-1>MM</font></html>
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