RE: Thread 2: 60-day issue

[David Rosenthal <rosenthal@insider.ch>]

>From: 	Karl Auerbach[SMTP:karl@CaveBear.com]
>Sent: 	Mittwoch, 25. Dezember 1996 05:09
>To: 	Michael Dillon
>Cc: 	iahc-discuss@iahc.org
>Subject: 	Re: Thread 2: 60-day issue
>
>
>But the point that I was trying to make was that trademarks aren't
>everything and that we are doing a disservice to divide the world into
>two
>camps;  those with trademarks on a name and those without. 
>

Correct. At least under Swiss Law (and probably many legal systems in
Europe) trademarks are not really as relevant  as one might believe
listening to all those discussions. This is because a trademark gives
it's owner only protection from beeing used in connection with similar
goods or services. A financial service using the domain bigbucks.xxx
will not infringe the trademark of a shoe manufacturing chain that has a
trademark on "bigbucks" as well. 

Besides: If there is trademark infringement, it is one even if it goes
unnoticed for the 60 days. I don't know what a judge would say in the
US, but at least in my country you would have to had accepted a
infringing use of your trademark possibily for years for loosing your
rights to stop the infringement. Here in Switzerland all trademarks have
to be registered to get legal protection (this is not the case in the US
...) and within that procedure there is also some thing similar to the
60 day-waiting period. It sure helps to avoid lawsuits, but it has not
stopped judges to test the validity of a trademark later on once it is
part of a lawsuit. 

-- Ok, so, since it could avoid lawsuits, is the 60 day waiting period a
good idea? No, not at all. You actually can use a trademark in
Switzerland also if is still in the process of beeing registered or even
before. But you cannot use a domain-name within the 60 day waiting
period under the proposal. 

Why not allowing to use the domain-name immediately and leave the risks
to the person that want's to do so? 

However, most cases here can be and most likeley will be resolved using
fair competition law. When doing so, the 60-day waiting period makes
absolute no sense, because only the *real* use (and not the intended
use) of the domain name will be relevant, which under the propopsal
obviously can occur only after the 60 days.

David Rosenthal

c/o IPD, Basel, Switzerland