Re: [wg-b] Revised IPC Proposal

["John Berryhill Ph.D. J.D." <john@johnberryhill.com>]

> The law does provide for what you call "preemptive restraints" on the use
of
> words in the form of preliminary injunctions in trademark infringement
> suits.

Yes, AFTER you go to court and get one.  There is no such thing as equitable
relief that is binding upon the world at large, and you know that full well.
Equitable relief in the form of an injunction is granted against (a) an
identifiable party, (b) for cause, and (c) in accordance with due process
protections for the party against whom relief is sought.  That has nothing
to do with the structure of the "sunrise" proposal, which is a blanket
injunction against all non-registered mark holders.

>(I cant' name one country where this isn't true, but there probably
> are some.) Prior restraints in the US of spoken and written words are
> extremely rare, but that applies to the use of words solely as language.

In the absence of identifiable harm, you cannot get a preliminary injunction
against anyone for anything.  If it is your intent to analogize the
"sunrise" proposal to preliminary equitable relief, how are conditions a, b,
and c above met?

> The
> IPC proposal does not affect the use of words on a website.(And in other
> countries, Great Britain comes immediately to mind, prior restraint of the
> written word is not uncommon.)
> Steve Hartman

I have no problem with chartered TLDs, just as I have no problem with the
fact that there are countries, North Korea comes immediately to mind, where
my views as a spoiled American do not comport with legal practice.

I fully appreciate your point about a domain name not necessarily
constituting speech.  What you miss completely there, of course, is that a
domain name does not necessarily constitute a trademark or the use of the
words in any sense relevant to trademark.

If I want to have a PC in my house with a static IP address, and I don't
want email or a web page, but I want it to control my coffee maker remotely
over the internet, then by golly I can call that computer
MrCoffee.johnberryhill and restrict access to the controls to anyone other
than me.  Gosh, what a handy feature that has nothing whatsoever to do with
the simple-minded view of the IPC that domain names are things they've heard
about sometime after they got their AOL accounts last year, or during some
wine-and-cheese catered AIPLA summary discussion given by some one-week
wonder know-it-all.

You tell me what valid concern is it to you or any other officious
intermeddler what I want to call my own computer equipment for my personal
use?

You also tell me what all of this crap over second-level domain names is
going to do for trademark holders?  I can game the search engines with third
and higher-level designations like
nabisco.nabisco.nabisco.keebler.johnberryhill.com/nabisco/wheathins.html no
matter what kind of mechanism is in place for for controlling registrations
in the second-level.  I can put the trademarks in meta-tags, and I can use
search-engine spamming active server scripts to get your traffic in ways
that I'm certain you would not be able to detect.

But the whole world has to come to a stop because there are trademark
lawyers who do not know how HTTP works, much less that there are other
communication protocols operative on this network.  It's like a bad dream.
Maybe, just maybe, the technical people have a broader view of what a
computer network is all about than a gang of people who don't really
understand or care about the subject.

I am a trademark attorney, Steve.  I go after infringers with zealous
abandon.  I've got one pending UDRP complaint, and one in the cannon ready
to fire.  I don't have any difficulty understanding the problems of
trademark enforcement.  But I can identify a non-solution with pretty good
accuracy, and the IPC proposal certainly qualifies.

John Berryhill Ph.D (EE) J.D.
Philadelphia, Pennsylvania