Re: SV: [wg-c] Deadlines

["William X. Walsh" <william@dso.net>]

Tuesday, August 03, 1999, 12:13:31 AM, Petter Rindforth <petter.rindforth@enderborg.se> wrote:

> Javier and all others, I fully agree that we have to set a new deadline although I am not sure that September 7th is enough. We will more likely need until September 30.

> I am convinced that we will be able to present a report by the end of September if only we could be a little more organized in our discussions and stop jumping from subject to subject, spending a
> lot of time with personal comments on single participants in this working group. We are here together, trying to solve some tricky problems and to deliver a serious report/recommendation. Right?

> Being an IP/IT Lawyer, a trademark owner and a domain name holder, I wish to point out that we, the accused "TM people" are not against the addition of new gTLDs as such, what we say is: Be
> careful, go slow and make sure that before creating any new problems there is a speedy and effective dispute resolution process, a system for protecting famous and well-known trademarks across all
> gTLDs and an easy and cost-effective system for obtaining full contact information. The addition of new gTLDs must be made in a very controlled manner, and that's why it has to be just a few to
> begin with.

You make a lot of assumptions above that are not necessarily the case under
law.

I think we can agree on "cost-effective system for obtaining full
contact information."  That should be a given.

Why should marks enjoy any greated protection in cyberspace as they do
in any other medium?  What dispute resolution procedure would be
considered acceptable to you?  Would you agree with the principle that
all dispute resolution be VOLUNTARY, meaning that either party can
decide at will to not by a party to an alternative dispute procedure
and exercise their right to the protections of the courts?

As Kent Crispin said recently on the IFWP list, the case law with
regard to domain names is uncertain, and is not clear cut.  As such
this area is not a viable candidate for mandatory arbitration or other
mandatory dispute policy.

Even so called "non-binding" arbitration presents a slew of problems
for the domain holder.  Should they wish to take the matter to court,
very few courts will take a case that has been into arbitration, even
non-binding, and place a high level of burden for the complainant to
show cause why the matter should be reviewed.  This shifting of the
burden of proof eliminates one of the primary tenants of Trademark
law, that the burden of protection and proof of infringement rests
with the trademark holder, but this type of policy would force the
domian name holder to provide they are NOT infringing, and to a
higher standard than what would normally be required of them, because
of the existence of the arbitration ruling, which the domain name
holder submitted to.

You also seem to suggest that Registries should be required to not
permit registrations of certain strings, assuming that the mere act of
registration creates a violation of the rights of the trademark holder
who has a trademark on that string.  The simple fact is that this is
not the case, and the any restriction on the ability of people to
register names such as this is a restraint of trade, and possibly a
violation of the rights of potential registrants.

With all of these uncertain, complicated, and unclear legal issues
surrounding domain names, there is really no place for a uniform
policy to be mandatory at the gTLD registry level.  Those decisions,
IF ANY, should be at the sole discretion of the registry operator, for
they are the ones who have to make the contract with the end
registrant.

I have yet to see a single supporter of the IP agenda with regard to
this area effectively answer these points.  Their response is usually
to just pretend they were never said, and just continue pushing their
agenda as if there were no opposition.

--
William X. Walsh
General Manager, DSo Internet Services
Email: william@dso.net  Fax:(209) 671-7934


(IDNO MEMBER)
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