IP: Re: WIPO

[Dave Farber <farber () cis upenn edu>]

Yes I understood and felt other IP would from past notes but since there
are a lot of new IPers I am forwarding Daves note




Date: Wed, 06 May 1998 09:39:46 -0700
To: farber () cis upenn edu
From: Dave Crocker <dcrocker () brandenburg com>
Subject: Re: IP: WIPO


At 10:00 AM 5/6/98 -0400, you wrote:
> The clause exempting te ISPs seems to create the same mess that eexists
> with the Domain Names trademark issue. Someone claiming that material is


Dave,


I hope that you and others understand that there are two, very different,
"messes" with trademarks.  


One is the result of the unique and bizarre rules that NSI put together and
about which every trademark attorney I've talked with (except NSI's) shrug
in frustration.  They simply do not comprehend the logic that NSI's
attorneys used to place NSI squarely in the middle of the decision process.
That is, NSI's policy has NSI taking pre-emptive action, absent directives
from a legal jurisdiction.  There is no obvious requirement for NSI to do
this and, in fact, quite a bit of basis for having a registry avoid such a
role.  A direct effect of NSI's taking this position is that it places
domains on hold in situations which would certainly never cause that
outcome by a court.  In particular, NSI strictly uses trademark to
determine rights, whereas the courts recognize a much broader set of rules.


The second mess is a legitimate legal conundrum, due to the fact that gTLDs
-- currently .com, .net, and .org -- are not tied to any specific
nationality and, therefore, not tied to a specific trademark jurisdiction.
The resulting quandary is fought on a case by case basis, in whatever
jurisdiction the complainant thinks appropriate.  It probably will help to
have some sort of truly international trademark jurisdiction for such
cases, but we currently have none.  Given that trademark attorney's have
been debating the topic for 100 years, one should not expect any near term
resolution.  On the other hand, the gTLD situation seems to be motivating
them to move from talking to legislating, so perhaps something WILL happen,
albeit in time frames the international law world would call near-term and
the Internet would call 'forever'.


d/
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Dave Crocker                Brandenburg Consulting        +1 408 246 8253
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