RE: [wg-b] RE: opportunity to pre-empt, or license to infringe?

["Judith Oppenheimer" <joppenheimer@icbtollfree.com>]

Title:

Eileen, the TM Lobby's activity speaks for itself.  The resulting hostility shouldn't surprise anyone.

 

(When was the last time you saw an invading army welcomed with open arms and cold beer?)

 

"Sunrise + 20" is imperialistic, monopolistic, oppressive, and a blatant power grab on the DNS.  Attempt to color it as benevolent -- *that* would be inflammatory.

 

As for semantics, smarmy is

 

(a) accurate -- "The trademark holder has no choice but to protect their brand" lobbies Marilyn Cade for Sunrise + 20, knowing full well that protection is provided legally by remedy, not by pre-emption, and that the UDRP has proven successful both as a viable alternative to litigation, and an inexpensive, rapid tool for remedy.  What would you call it?

 

and (b) no more inflammatory than the pejorative "cybersquatter" bandied about by IPer's, gleefully, with abandon.

 

Finally, there is *nothing* personal, at least on my part, in discussing Michael's, Marilyn's or Steve's comments.

 

Indeed, in true "don't shoot the messenger" fashion, I think Michael did us a great service in his sincerity and candor when he told us, rather passionately, that

 

    "The trademark lobby must be placated because of its potential ability and inclination to bankrupt new registrars and wreck havoc on their registrant databases."

This -- the Trademark Lobby's inclination, more than anything else, to destabilize the Net -- this extortionist threat which, unbelievably, was explained to me at that same SBA Advocacy meeting by an IP representative as "the democracy that being in America affords us" -- this is the problem. 

(No one in that meeting, not one single IP representative or ally, denied or contradicted Michael's statement, or even attempted to "soften" it, other than to comment that they thought "extortion" was a "harsh" characterization.

Rather, they concurred that it was "the democracy that being in America affords us", as noted above.  I'm sorry I don't know the name of the woman who first said it, but everyone else among the IPer's agreed with her.)

So please don't *you* mischaracterize my reiteration of events and appropriate crediting to Michael, as Michael-bashing.  Nothing could be further from the truth.

As for Marilyn and Steve, I understand they're just doing a job.  I don't know either of them personally, but would guess they're both too smart to get caught with their feet in their mouths as often as they seem to do.  That's what happens when you're paid to represent absurd, untenable positions.  Nice people get paid to say dumb things, and they get slammed.  That's why they get paid the big bucks

BUT, "I think we all want what's right for the internet" is equally absurd (and perhaps the most inflammatory statement I've heard all night.)  The Trademark Lobby wants what it deems in its best interests, and shortsightedly at that (witness its self-mutilating strategy in the toll free arena.)

"The trademark lobby must be placated because of its potential ability and inclination to bankrupt new registrars and wreck havoc on their registrant databases," speaks for itself.  Let's NOT pretend the IPC has benevolence at heart.  That would be insulting, and indeed, most inflammatory of all.

Judith

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-----Original Message-----
From: eileen kent [mailto:eileen_kent@ameritech.net]
Sent: Thursday, April 20, 2000 9:11 PM
To: Judith Oppenheimer; Cade,Marilyn S - LGA; 'Hartman, Steve'; 'John Berryhill Ph.D. J.D.'; wg-b@dnso.org
Subject: Re: [wg-b] RE: opportunity to pre-empt, or license to infringe?

Steve Hartman's comment about free speech was pretty much guaranteed to inflame a goodly portion of this list. However, I fail to see that the hostility displayed toward the i.p./trademark community on this list is warranted. And what I think is truly unwarranted, are words like "smarmy." Again, guaranteed to inflame. This group needs to get back to trying to reach consensus and talk about the issues on an intellectual rather than a personal level.

 

Michael Palage may very well have made some errors in judgment, but not to the point that he should be stoned in the public square. I thinked he's worked hard to hear all viewpoints. He's not a superman. He has a job and a family. Give the guy a break. He's done a good job for the registrars and for wgb. I think we should praise him, not bury him.

 

It's one thing to be passionate about something. I applaud that. But this isn't getting us anywhere.

 

I see everybody's side in this. I'm not terribly cynical about anyone's motives. I think we all want what's right for the internet. Let's try to work toward that.

 

peace

eileen

 

 

 

 

----- Original Message -----

From: Judith Oppenheimer

To: Cade,Marilyn S - LGA ; 'Hartman, Steve' ; 'John Berryhill Ph.D. J.D.' ; wg-b@dnso.org

Sent: Thursday, April 20, 2000 6:04 PM

Subject: RE: [wg-b] RE: opportunity to pre-empt, or license to infringe?

Ms. Marilyn.  Let's try this one more time.  Steve Hartman of Nabisco said,

"[The Sunrise Proposal] simply allows trademark owners the opportunity to pre-empty speculators and cybersquatters." 

I replied that cybersquatting involves infringement of trademark rights and is actionable.* 

But speculation is legal and legitimate activity.  Trademark owners have no legal right to infringe on speculators' activity. 

You can try to "clean it up" all you want, but the true agenda of the Trademark Lobby rings through loud and clear from Steve's statement noted above. 

In fact, he continued, "On balance, the benefits of the sunrise provision outweigh free speech and hoarding concerns."

*Note for the record my objection to pre-emptive "anti-cybersquatter" DNS attachment, as legally there is no "cybersquatting" per se regarding a particular trademark and domain name, until a judge says there is.  I can only conclude as I wrote earlier, that the objective of the Trademark Lobby is to:

-- Create new trademark rights to pre-empt population of the DNS.

-- Grant trademarks license to infringe on the legitimate rights of others.

-- Dismiss outright, so-called public resource issues; and

-- Discard that most elementary of American rights: free speech.

I've observed the Trademark Lobby's attempts at similar take-over activities in the toll free number arena for years (thwarted time and again by the FCC, which unlike ICANN, isn't in bed with one particular constituency, and also unlike ICANN, is a mature, knowledgeable and accountable regulatory body.)  

The FCC's position on trademark rights in the numbering space should serve as a model for the Internet regarding the DNS. 

Instead we are confronted without exaggeration by a taking over of the DNS; a truly malicious act of aggression and oppression against the Internet community worldwide.

("consumer protection" my ass, if it walks like a duck and quacks like a duck ... )

P.S.  You write "The trademark holder has no choice but to protect their brand."  Here we have no argument. 

But Marilyn, you know  that protection is provided legally by remedy, not by pre-emption, and that the UDRP has proven successful both as a viable alternative to litigation, and an inexpensive, rapid tool for remedy. 

Which leaves your plea disingenuous, if not downright smarmy. 

 800 & Dot Com News, Intelligence, Consulting - FREE Daily HeadsUp Headlines.
"...superb real-time source..." -- "...invaluable..." -- "...indispensable..."
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Judith Oppenheimer -- mailto:joppenheimer@icbtollfree.com --  +1 212 684-7210


-----Original Message-----
From: Cade,Marilyn S - LGA [mailto:mcade@att.com]
Sent: Thursday, April 20, 2000 5:19 PM
To: 'Hartman, Steve'; 'Judith Oppenheimer'; 'John Berryhill Ph.D. J.D.';
wg-b@dnso.org
Subject: RE: [wg-b] RE: opportunity to pre-empt, or license to infringe?


I agree with Steve's comments.  If someone is speculating in the trademarks
of others, versus speculating in names not yet registered, or trademarked,
the trademark holder has no choice but to protect their brand.  We can't
merely sit by and allow infringements to occur.  Mechanisms which can
prevent litigation should be viewed positively, since the need to engage in
litigation will only delay e-commerce, add in unnecessary costs, and
benefits no one.

-----Original Message-----
From: Hartman, Steve [mailto:HartmanS@Nabisco.com]
Sent: Thursday, April 20, 2000 2:45 PM
To: 'Judith Oppenheimer'; 'John Berryhill Ph.D. J.D.'; wg-b@dnso.org
Subject: [wg-b] RE: opportunity to pre-empt, or license to infringe?


In my judgment speculation in the trademarks of others unnecessarily drives
up the cost of doing business on the Internet and reduces the efficiency of
the Internet, with no countervailing benefits.

A sunrise provision has the potential of appreciably reducing the number of
cybersquatting opportunities and, in so doing, reducing the amount of
cybersquatter-related litigation.

On balance, this benefits of the sunrise provision outweigh free speech and
hoarding concerns.

Steve Hartman

> -----Original Message-----
> From: Judith Oppenheimer [SMTP:joppenheimer@icbtollfree.com]
> Sent: Thursday, April 20, 2000 1:50 PM
> To:   Hartman, Steve; 'John Berryhill Ph.D. J.D.'; wg-b@dnso.org
> Subject:      opportunity to pre-empt, or license to infringe?
> Importance:   High
>
> Steve Hartman, Nabisco, says,
>
>
> "[The Sunrise Proposal] simply allows trademark owners the opportunity to
> pre-empty speculators and cybersquatters."
>
> Cybersquatting involves infringement of trademark rights and is
> actionable.
>
> Speculating is legal and legitimate activity.  Trademark owners have no
> legal right to infringe on speculators' activity.
>
>
> Judith Oppenheimer