Re: [wg-b] Re: Fw: Unfamous Names...

[Mark Measday <measday@josmarian.ch>]

John,

I think you are working on the wrong scale. We're thinking of different things.
And I'm not interested in an objective or policy driven-list, but a purely
pragmatic one that would respond to existing determining tests. Anyway they have
theirs, where's yours? As to commercial risk-management drivers, obviously
people will do as they like within the law, more or less. Some large companies
believe that inclusion in such a list is beneficial to their interests. Who am I
to argue?

I received a email saying you are a fearsomely aggressive litigant. Why don't
you sue the US Government for not guranteeing the rights of your clients?

MM

"John Berryhill Ph.D. J.D." wrote:

> From: Mark Measday <measday@josmarian.ch>
>
> > Tell me why you haven't got it wrong Harald.  A list of exclusions
> > provides an insurance policy for registrars, who can't be sued for
> > soemthing they haven't sold, no?
>
> To the extent that they insert themselves into the process of picking and
> choosing names for the registrants, even by exclusion, they increase their
> potential liability to those whose names were not on the list.  To the
> extent that they do not attempt to act as a filter for domain names, then
> they have a better argument for simply doing what NSI used to do and to file
> an interpleader motion in response to any suit.  That's a lot cheaper than
> attempting to defend the use of list of questionable legal merit (i.e. no
> legal merit).
>
> It is a certainty that, despite the list, (a) some clever person will get a
> homophonic or alternate spelling variant that will make it through and (b)
> some famous mark will be left off of it, and will be registered for an
> infringing use.  The failed attempt on the part of the registrars to prevent
> either (a) or (b) makes them responsible for the outcome to a greater extent
> than if they had been registering domain names by an automated, unfiltered
> process.  We've seen this same situation occur with the differing outcomes
> in cases involving Usenet newsgroup postings - only the non-engaged
> administrators who did not attempt filtration emerged unsullied from those
> battles.  Do we have to re-play that saga for those who were not around for
> it?
>
> And, now that you've referred to me as a "mysterious" "be-jeaned internet
> rocketeer", I should assure you that I wear a suit every day in my
> profession as an intellectual property attorney.  You can look me up in the
> USPTO database of registered attorneys if it would help solve the mystery
> for you.  My doctorate, however, is in electrical engineering, and I have
> been involved with the internet in one way or another since about 1984.  It
> is many of my uninformed legal colleagues who are the late-comers to that
> party, though.
>
> The scenarios for lawsuits are much richer in the presence of this mythical
> list, rather than in its absence.  What are you going to say to the, as-yet
> fictitious, rock band "Axe Rox" ("axe" is a slang term for a guitar), who
> will be prevented from registering their stage name as a domain name because
> it includes the substring "xerox" in it?  Or is your magical list going to
> have some way of knowing the difference between a registrant using
> axerox.foo to infringe the Xerox mark and a use which has nothing to do with
> the Xerox mark?
>
> We have seen the wisdom of the trademark "experts" in the Uniform Dispute
> Resolution Policy in the "cancellation" outcome for which I have not been
> able to identify the responsible "expert".  So far, the UDRP "cancelled"
> domain names fibershield.net, planetrxx.com, and websterhall.com have all
> been re-registered by a domain collector/speculator in Virginia who intends
> to use them as a platform for demonstrating the stupidity of having legal
> experts run a technical system, and who is considering transferring them
> back to the original respondents in the respective UDRP proceedings.  So the
> complainants spent all of that money and have gotten NOTHING out of this
> "expertly" crafted UDRP.  We have also witnessed the emergence of pandering
> among the UDRP arbitration providers for the title of most
> complainant-friendly in their press releases which refer to "evict[ing]
> cybersquatter[s]" (NAF) and "go[ing] after cybersquatters" (eResolution),
> due to the built-in commercial incentive of the "complainant's choice"
> structure of the UDRP.  My confidence in the ability of similarly uninformed
> legal colleagues of mine, however brilliant they may otherwise be, to devise
> a sensible "famous name" exclusion policy is not high.
>
> If you want to provide an insurance policy for registrars, then you can
> point them at any of the fine commercial insurance vendors who will be more
> than happy to provide them with one.  If the commercial risk is perceived as
> too great, then they will have to sit on their hands and let others make
> their own risk/reward calculation for themselves.  This is the way that
> business operates.  Ill-informed tinkering by providing an "objective" list
> which is fundamentally based on several very subjective factors is not going
> to help anyone, except perhaps those who crave another entry in their
> curriculum vitae (or maybe just a T-shirt inscribed with "I helped screw up
> both the internet and trademark law, and all I got was this lousy shirt").
>
> John Berryhill, Ph.D. esq
> Philadelphia, Pennsylvania

--
Mark Measday
__________________________________________________________________________

Josmarian SA (Switzerland) Josmarian (UK) Ltd
http://www.josmarian.ch measday@josmarian.ch
UK tel/fax: 0044.1273.47.48.94  UK mobile: 0044.370.947.420
French tel/fax: 0033.450.20.94.92

'Tragedy inheres in all choice' : Isaiah Berlin
__________________________________________________________________________