RE: [wg-review] Trademarks and UDRP

["Dassa" <dassa@dhs.org>]

|>-----Original Message-----
|>From: On Behalf Of Kent Crispin
|>Sent: Saturday, February 24, 2001 6:30 PM
|>Subject: Re: [wg-review] Trademarks and UDRP
|>
|>> Nothing odd about it.  Nothing prevents the TM holders or any others
|>> from pressing their cases.  However, what the outcomes are from that, is
|>> what is allowed to happen, either by the powers that be or by inaction
|>> from others in presenting opposing opinions and views. 
|>
|>What is odd is your conception that there are "powers that be" that 
|>have any control over any of this.  There aren't.  That's why the word 
|>"allow" is funny -- there isn't any entity in a position of authority 
|>that has the power to "allow" or "disallow" anything.  We are in a 
|>state of nature.

With regard to the UDRP, ICANN is in a position of authority to enforce the policies it has implemented within the UDRP.  They can make changes to how the UDRP is implemented and ensure that the actual policies are upheld.

|>http://dcc.syr.edu/roughjustice.htm:

Thank you for the link, it was very informative.

|>    On the other hand, the statistics also prove that trademark-domain
|>    name disputes are a very small portion of the overall domain name
|>    marketplace, and that the problem is not growing.  The number of
|>    disputes is at best holding steady and may already be declining.  It
|>    also reveals that a tiny number of malfeasors account for a
|>    significant share of the problem...Disputed names thus constituted
|>    somewhere between 0.00035 and 0.00028 of the total number of new
|>    registrations.  In other words, for every registered name that
|>    causes a dispute, there are now about 3,500 new ones registered that
|>    do not. 
|>
|>To paraphrase:  TM conflicts are a small matter, growing smaller, and 
|>most of the problems come from a few bad guys (cybersquatters).

Agreed, percentage wise the issue is only small, however, for those affected it is a major concern and the potential is there for the UDRP to be abused, which is clearly happening in some cases.  It will also be interesting to see if the numbers change more in the future.

|>[...]
|>
|>> I have to admit that I'm not familar with all the aspects of
|>> trademarks and their registration.  However, I assume that there is no
|>> single International body that accepts registrations that apply world
|>> wide? Please clarify if I make invalid assumptions.  So, in theory it
|>> would be possible for me to have registered the songbird trademark
|>> within another jurisdiction to yours.
|>
|>In fact there are many such registrations.
|>
|>>  Who has the claim on the domain name?
|>
|>Whoever gets it first, as long as their use is legitimate.

Would be interesting to see multiple TM holders going after the same name.

|>> This is basically what I am getting at.  Why is the DNS being used to
|>> expand rights to particular groups that they do not already have within
|>> existing authoritive structures?
|>
|>Because DNs did not exist within the existing legal structures, but DNs
|>have come to have functions that overlap those of TMs.  Thus conflicts
|>come into being, and thus the law expands to cover those conflicts. 
|>This new law expands the rights of TM owners into a new arena with
|>functional overlap with TMs.  This is perfectly reasonable and in fact
|>necessary -- the conflicts are real, and current law is inadequate to
|>deal with all the issues.  Moreover, given the facts, it is 
|>inevitable. 

The problem I have is the UDRP is not a law.  I agree the current TM laws are inadequate and that the UDRP goes part of the way to addressing the issues.  What I do not like is the URDP being used to get decisions that would not be supported by existing law.  It would appear to me that the UDRP is being used to circumvent the existing TM laws.  I would much rather see the UDRP policies upheld in strict definition and the TM holders attempt to develop new universal laws to cover the remaining cases.

|>================================================================
|>
|>(*) Assuming that the UDRP is working correctly.  There is widespread 
|>agreement that the UDRP could be improved; you, however, are arguing 
|>that it is completely illegitimate, and I am disputing that.

If the UDRP policies were strictly applied and we had consistent outcomes (decisions) I would not have any objections to it.  The way it is currently implemented does fill me with concern however.  I do not say the UDRP is illegitimate, only the current implementation (not all of it, just sections where the policies are not upheld).  I do believe we need the UDRP.  It does have a function to perform.  I would like to see it improved however.

Darryl (Dassa) Lynch.

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