Re: [wg-c] Retraction of previous proposal

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

>
>TM owners are responsible for the costs of *policing* their marks. That is,
>registries and other parties have no affirmative duty to look out for TM
>violations. It is up to the owner to identify them.


However duty attaches to third parties in situations where they know are
have reason to know of infringement.


>
. If you want the highest level legal ruling on it, refer to
>the Lockheed Martin decision: "contributory infringement doctrine does not
>impose upon NSI an affirmative duty to seek out potentially infringing
uses of
>domain names by registrants."

The Lochheed case was the lowest level ruling.  The highest level ruling
was the Supreme Court decision in Inwood, which set the "know or reason to
know" standard.  The Ninth Circuit decision in Fonovisa reiterates the
"know or reason to know" standard.  The Lochheed standard of "absolute
knowledge" is very likely at odds with the Fonovisa decision.  Appeals in
Lochheed were heard recently and the Ninth Circuit, fresh from reversing
the epix.com decision, should issue a decision shortly.  That decision will
provide the clearest guidance to date on the responsibilities of a
registrar/registry both pre-notice and post-notice. 




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