Re: Avoiding Lawsuits

[Carl Oppedahl <carl@oppedahl.com>]

At 08:15 AM 11/25/96 -0800, John Harvey wrote:

>Having followed discussions on the IETF list and here since its
>inception, iTLD technical issues seem to have been discussed in depth.
>Whether the new iTLDs are exclusive, shared or a combination, they will
>need to unite diverse interests rather than fragment them.
>
>Already there is talk of  "break-away" domains and registry
>"non-recognition" but little about procedures that will mitigate
>litigation and help secure unity and stability of the new iTLD
>communities. 
>
>The recent experiences of InterNIC have found it being summoned as
>Defendants and sometimes Witness in the domain name wars. (Roadrunner
>Computer Systems v NSI, Data Concepts Inc v Digital Consulting and NSI, 
>Clue Computing v NSI, .......)  

NSI has never served as Witness in any domain name lawsuit, at least, not
since its enaction of its flawed July 1995 domain name policy.  And the
three cases you cite were filed only because of that flawed policy.  If NSI
had followed RFC 1591, as most other Internet registries do, none of those
three lawsuits would have been filed.

>As iTLDs increase, it is most likely
>that infringement battles will draw new ammunition from the
>currently diverse interests being expressed. 

Actually, it seems likely that if new TLD registries simply avoid the
blunder of NSI's Second, Third, and Fourth policies, they will see fewer
lawsuits than NSI has seen.  And will quite likely find the tiny handful of
remaining lawsuits to be the kind that don't require significant legal
expenses.  

>As "catchy" domain names have become a commodity, the pressure for
>securing the "right" name has become intense.  Applicants will place one
>registry against another in order to secure the name they want. "If the
>*.WEB registry won't give me the name I want because they are respecting
>a trademark,  I will go to *.$$$."  The effect is that the .. $$$
>registry will end up in court.

Maybe, but it probably won't (assuming they avoid NSI's flawed policy) be
the kind of being-in-court that costs a noticeable amount of money.

>Registries will not have the resources to vet each application for
>trademark infringements in each jurisdiction, 

But they don't need such resources.  Courts are good at this sort of thing,
and they can determine who is an infringer and who is not.  It's their job.  

>so the proposed mechanism
>needs to be international respecting specific legal jurisdictions, to
>guard against iTLD registries being summoned to defend allocation of a
>domain name in a distant country.

As a matter of common sense, a trademark owner who is trying to file a
lawsuit that names a registry will select a court that has jursidiction over
the registry, which in most cases would mean a court in the same place where
the registry is.  Thus, registries are unlikely to have to respond to a
summons from a distant country.  There is no report of NSI ever having been
sued in a court outside of the US, and report of a TLD registry having been
sued in a country outside of its own.