Re: [wg-b] Points of agreement

["Martin B. Schwimmer" <martys@interport.net>]

At 08:22 AM 12/15/99 +0100, you wrote:
>It seems universally agreed that:
>
>- Famous marks are not defined to the point where one can make a list of
them.
>   Existence proof: The list doesn't exist.

Disagree.  Depends on who the "one" is.  The statement as a universal point
is incorrect.  Famous marks are defined to the point that countries issue
holdings that marks are famous.  You make such holdings and then you can
list them.  See Fred Mostert's book (previously discussed), see cases from
all over the world holding that individual marks are famous, see Korea's,
Japan's and China's lists.

Famous marks are sufficiently defined such that a panel of experts can make
a list of them.  If we are talking about pre-use exclusion, then a high
standard of fame (such as the AUFM proposed by Peter Weiss) would be
appropriate.

>
>- Exclusions have to be applied mechanically, or they would
>   a) increase the cost of registrations by requiring human judgment
>   b) unacceptably increase the liability of registrars/registries

Agreed.

>
>- Exclusions of all instances of a famous mark as a substring in a domain
>   name will exclude names that a court would not uphold the exclusion of.
>   (existence point: tenNISSANdiego. Example point: i-hate-oreos)

Agreed.



>If these 3 points are agreed, I think we're moving slightly forward.

Agreeing on two out of three might be moving forward as well.



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