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RE: [wg-review] Trademarks and UDRP
Eric, I have to agree with Kent here. You and I both know that national
laws regarding trademarks exist, and that when a domain name conflicts with
a trademark, legal recourse is often taken by the trademark holder. The UDRP
provides an alternative to that. Should you not like that alternative, you
can rely on national law.
Let's examine the similar situation in business overall. Arbitration exists
as an option to many complaints which consumers have against businesses, or
which businesses have against each other. Gee, there are even international
arbitration bodies... I don't see what your beef is with the existence of
arbitration in this setting.
No system is perfect, and even courts make wrong decisions. You seem to
think that all trademark owners are out to get everyone else. I don't see
any empirical evidence of that. I also don't see any empirical study which
supports the allegation that the UDRP is flawed. I understand that there is
legitimate concern and questions about specific outcomes of individual
cases.
However, from the beginning, there was an agreement to have an assessment
after a period of use. If you are so concerned that WIPO's implementation
of the UDRP is flawed, then let's focus on the work of such a factual
assessment, and let's make sure that we consider all factors, including the
potential costs to those who use the UDRP as a defense, when they otherwise
would be paying court costs which are almost always higher.
Are you concerned about that cost? While you think of me as only concerned
about famous trademark holders, several small companies are also involved in
the PSWG, and they were strong supporters of the UDRP, because their marks
are taken by ... let me call them the "less than public adult entertainment
community" -- to set up porno sites, using infringed versions of legitimate
businesses, and in one or two cases, to set up child porno sites. These are
illegal activities and of significant concern to these businesses. Of
course, they can sue, but the UDRP is also an option to them.
Small businesses can benefit form the UDRP, just as can larger ones, or non
profit organizations, just as can legitimate cases of individuals who have
established use in a domain name. I don't claim that all outcomes of all
decisions are "correct".
Do you have a specific set of requests to be included in an evaluation?
That would be a useful and productive contribution from you, and others.
Marilyn
-----Original Message-----
From: Kent Crispin [mailto:kent@songbird.com]
Sent: Saturday, March 03, 2001 10:21 AM
To: review
Subject: Re: [wg-review] Trademarks and UDRP
On Mon, Feb 26, 2001 at 10:58:04AM -0800, Eric Dierker wrote:
> If my stockholders of my fictitious company found out that I (as a
fictitious
> lawyer) on behalf of my company signed an agreement that said I would
agree and
> abide by the decisions of wipo regarding our domain names and trademarks
they
> would fire me.
Mistake #1: You don't "abide by the decisions of WIPO". You abide by
the decisions of an independent arbitrator.
Mistake #2: People sign arbitration agreements all the time. They are
quite common. Nobody would fire you for signing an arbitration
agreement.
> Now the only way they would not fire me is if I had no choice and could
wink at
> them and say don't worry we control wipo.
Sorry, but you are simply being ridiculous. You are misrepresenting (or
misunderstand) the UDRP, you are misrepresenting (or misunderstand) the
nature of arbitration, you are misrepresenting (or misunderstand) the
nature of WIPO.
In short, you are merely mouthing words because you like their sound.
There is no actual content.
--
Kent Crispin "Be good, and you will be
kent@songbird.com lonesome." -- Mark Twain
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