Re: Legal Solutions? (Re: Conflict resolution?)

["G. Gervaise Davis III" <ggd@iplawyers.com>]

Bob-
I suspect from a legal standpoint the only solutions are:

lst come first served

NSI and new registrars stay out of the TM issues

Tell TM holders who object to domain names to go to Federal court to 
enforce their infringement claims just like they have to do to 
enforce tm's against infringers in other areas of business

Recognize that the TM problem is an international one that 
governments will have to solve, not IAHC, Internic or NSI.  TM's do 
not have international uniform rules like copyrights do - but 
copyright treaties took 100 years for US to conform to the rest of 
the world (Berne 1888 or earlier, US adherence 1988). Further, a US 
tm has no legal value in any other country and there could be the 
identical trademark for the identical product or service in every 
country of the world.  This means that in a cyberworld the 
proprietors or managers of the Internet cannot possibly solve the 
issues that governments will have to take years to negotiate and 
resolve --- get NSF, Internic, IAHC and all Internet folks out of 
this issue, because they cannot win no matter what they do, other 
than to tell the TM owners and domain name owners that it is not a 
problem they can solve.  

If IAHC wants to take on more unsolvable problems why dont they 
suggest regulations and rules for birth control, abortion, genocide, 
etc.  - they might have more success in some of those. I am serious!

The pragmatic, non-legal solution, assuming some of you techies can 
find one that works, is to create more TLDs which destroys the value 
of domain names in the hands of pirates and reduces to absurdity the 
arguments of the TM owners who want to own every version of their 
TM's - I have argued in court that if the TM owners are right about 
their right to own all similar domain names, they should also go 
after personalized license plates and any telephone number that 
spells their tm's.

This is not great wisdom, just a pragmatic lawyer who has seen this 
kind of BS over 38 years of law practice.  If a domain name had no 
commercial value, there would be none of this battle -- just as there 
was none when the only names were mit.com, ucb.com, xxx.mil, etc.

Please see if we can keep others on track to see this.

thanks,

ggd3




On 19 Nov 96 at 7:42, Bob Allisat wrote:


G. Gervaise Davis III wrote:
>Tony - as an IP lawyer inundated with pleas for help by small
>businesses and individuals who are having their domain names hijacked
>by large, well financed companies who have simply realized that the
>little guy cannot afford to litigate with them, I vehemently disagree
>that they were worked out amiciably - these little guys are the
>victims of sledge hammer attacks by big business - taking advatange
>of a poorly thought out policy by a company (NSI) that simply wants
>to protect itself from angry trademark holders and possible
>contributory trademark infringement liability. NSI and Internic could
>solve this by leaving the parties to the federal courts, where most
>of the big companies would not dare take these cases, because their
>lawyers would be in contempt of Rule 11 that requires a reasonable
>assertion of their clients cases, and these lawyers know that in most
>of the cases I mention above the big business has no trademark case,
>only a right under nsi's policy to bludegon these little guys.
>
>There is hardly a day goes by that I or my partners do not get a plea
>from these innocent victims for pro bono help, which we give when we
>can but we also have to make a living with fee paying clients. Please
>think about this aspect of the issues and collect the real facts.


 I cannot see any solution *except*
 a locked in, first come first policy
 with full protection for Domain Name
 holders under international treaty
 or similar agreements. Including some
 practical limitation on how many Domains
 one entity can hold...

 Please GGD3, what solutions do you offer
 from a practical, legal perspective?

                             Bob Allisat

   PO Box 191 Station E Toronto Canada M6H 4E2      (416) 588-0670


G. Gervaise Davis III, Business and Intellectual Property Lawyer
Davis & Schroeder P.C., P.O. Box 3080, Monterey, CA 93942
voice - 408.649.1122      facsimile - 408.649.0566
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