Re: [wg-b] Bounced Posting From Mark Measday (re-submitted)

[Mark R Measday <measday@josmarian.ch>]

Thank you for reposting this comment, Mike.

As a matter of interest of one hundred large cap European companies chosen at
random, approximately 20% had implemented strategies to contain domain name
speculation or mistaken identity in their mark which included mass purchase of
ccTLDs. Given the costs of this, any hurdle rate for famous marks could be set
below the opportunity cost of such activity, i.e. some figure such as $50,000 and
you should find buyers.

On the question of a specific gTLD for famous marks, I don't see why any
commercial famousmark is interested in changing to .fame, as the specific mark
would then be available for use in all other gTLDs and ccTLDs.

Could someone correct me on the question below that thr WIPO SCT finds the
international treaty injunctions for preservation of individual personality
logically prior to trademark claims, implying that if Mr Morris, Philip has enough
money (an important proviso) he should be able to reclaim some personal identity
on the net from the food and healthcare company. This might be important if
personal IP becomes a reality, but is probably a misunderstanding.

MM

"Mark Measday" wrote:

> 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