Re: Thread 2: 60-day issue

[Carl Oppedahl <carl@oppedahl.com>]

At 08:35 AM 12/26/96 -0800, Kent Crispin wrote:

>Carl Oppedahl said:
 
>> >Leo Smith wrote:
 
>> >> Comment on 60 day:
>> >> The 60 day proposal is there to meet the desires of the Trademark
>> >> organization.  Should IAHC offer this 60 day benefit to the trademark
group
>> >> gratis...or should the inplementation of the 60 day rule be conditioned
>> >> upon the trademark group paying for the costs associated with the
benefit?

>> I am sorry but that view is mistaken.  The effect of the 60-day provision
>> would be to *help* domain name owners compared to the present (terribly
>> flawed) regime in which NSI always takes the side of the party who seeks to
>> take away a domain name.  

>Carl, it actually is not at all helpful to keep mentioning
>the "present (terribly flawed) regime".  I have not seen a single 
>post supporting NSI's policy.

Except postings by David Graves of NSI, of course, some months ago.

>So we can assume that the new registries won't follow NSI's policy.

I am also hoping NSI will scrap its policy, and soon.

>The real issue is whether the 60 day wait adds anything above a
>*sensible*, hands-off policy on the part of the new registries.  You
>claim that after a while the courts might accept passage the waiting
>period as a flag for implicit acceptance of a potentially infringing
>name.  However, there is no law and no precedent to this effect at 
>this time, so your claim is hypothetical.

The difficulty with pure hands-off is that trademark owners who have no
actual basis for a claim of trademark infringement, but who suddenly
realize they want someone else's domain name, will take the absence of any
stated opposition period as license to raise their claim at any time, no
matter how much time has passed.  The 60 days focuses everyone's attention
on the difference between a bona fide claim of trademark infringement, and
a mere domain name grab.

>What we need to balance is this *potential*, *hypothetical* benefit of
>the 60 day wait against the potential damage done to domain name
>customers who have to wait.  In evaluating this balance we ought to
>have some reasonable estimate of the percent of domain names that have
>involved infringement.  My estimate that less than 0.1% of domain 
>names have involved trademark infringement.  Therefore, there is no 
>justification for the 60 day wait.

Well, I understand your point and it is certainly an important one.  I
believe, and believe strongly, that courts will give great weight to the
60-day period, and will indeed grill a trademark owner for his or her
excuse for why the claim was not presented during that time.  And that
trademark owners who merely covet domain names will tend not to even raise
challenges.

The pity is that if I am right and you are wrong, I won't ever be able to
prove it, for the simple reason that the challenges won't happen and so
won't be listed anywhere for people to keep count of.