Re: 60 day thought

[Carl Oppedahl <carl@oppedahl.com>]

At 02:57 AM 12/22/96 +0100, Paul Svensson wrote:
>On Sat, 21 Dec 1996, Carl Oppedahl wrote:
>
>>Under the IAHC proposal it would also be that "you snooze, you lose".  Not
>>that a trademark owner would be completely unable to get a domain name cut
>>off after the 60 days, but at least they would have to go to court and come
>>up with some good reason why they didn't oppose it during the 60 days.  And
>>under the IAHC proposal you would no longer be vulnerable to arbitrary and
>>capricious cutoffs by NSI, as you are today.
>
>You're making this sound like opposition to a domain name during the 60
>day waiting period has some possibility for cutting the domain name off
>without going to court.

Nope.  During the 60 days, under the IAHC or INTA proposals, the only way
to cut off the domain name is to go to court.

>If so, wouldn't this cause the same problems as NSI's current policy ?

Nope, for the above reason.

>If not so, what's the gain from not having the name available in the DNS,
>and is this gain really big enough to justify the cost of the delay ?

Well, your question makes sense to ask, no question about that.  My feeling
is that the gain is that courts will understand that someone who gripes,
years later, had this 60-day period during which they *might have* griped,
and failed to do so.  

And here is the important part.  Now, in 1996, when a trademark owner sues
a domain name owner in court, the trademark owner often acts as though
there is no need to investigate *what the domain name owner is doing*, it
is enough to compare the domain name text with the trademark text, and if
the two texts are similar the trademark owner thinks they are entitled to
win.  And some judges may slide into thinking this.  Right now in 1996 it
regularly happens that a trademark owner threatens legal action on a domain
name that's been around for months or years, and manages to intimidate a
domain name owner into giving up even though the only shred of a case comes
from mere text overlap, and not from any actual trademark infringement.

But with the 60-day stuff, the judge will know that if a text match was the
problem, then the trademark owner ought to have spoken up back during the
60 days.  If the 60 days is a long time ago, then the trademark owner is
going to have to focus on *what the domain name owner is doing*.  And the
judge will focus on it.  And if the domain name owner is doing computer
consulting and the trademark is for children's games, the judge will laugh
the trademark owner out of court.