Re: where the waiting period came from

[Carl Oppedahl <carl@oppedahl.com>]

At 12:49 AM 01/02/97 -0500, John Leslie wrote:

>Rick H. Wesson wrote:
>> 
>> Folks check out where the waiting period came from.
>> 
>> http://plaza.interport.net/inta/intaprop.htm
>
>   I'm not sure whether comments to INTA will be effective -- it's
>obviously a group of (apparently U.S.) lawyers looking first of all
>at their own interests.

Your "apparently US" isn't correct.  It is the International Trademark
Association, with members around the world.  Your "obviously a group of
lawyers" is also incorrect.  The membership of INTA includes trademark
owners as well as trademark lawyers.  (A quick perusal of the INTA web site
would have told you this.)  Finally, your statement that the INTA
subcommittee members who drafted the proposal were "looking first of all at
their own interests" is, so far as I can tell, mistaken.  Their proposal
evidences substantial efforts to attempt to balance interests of many
parties other than owners of trademark registrations.

>   From their document:
>] 
>] Some may argue that this Proposal is not a solution on the dispute
>] front because it requires a victim of infringement to go to court,
>] and incur substantial cost and inconvenience in the process.
>
>   I would argue that. Dispute resolution should not be forced on an
>overloaded court system if other reasonable alternatives are available.

Well, if someone (a "victim of infringement") has a gripe with a toothpaste
brand name, or with the text content of a web site, they will simply have
to go to court (hopefully preceded by asking nicely, etc.)  I can't see any
reason why domain names should be special in this regard.  What "other
reasonable alternatives" are you thinking of, by the way?  Keep in mind
that in many cases the "victim" has no domain name, so is presumably not
already subject to the policy of the domain name registration authority.

>] But going to court is how civilized societies deal with infringements
>] of rights and other wrongs.
>
>   Their prejudice is obvious. :^(
>
>   Most societies deal with most infringements of rights without going
>to court. It is necessary to hear an occasional case in court to establish
>the precedent -- future cases are usually resolved less formally (until
>someone thinks s/he can convince a judge to rule differently).

Whatever "without going to court" methods you are thinking of, please
describe them.  

You seem to be suggesting that what happens is, after ten or twenty court
cases on some particular subject, the parties in later disputes tend to
settle them knowing how a court would have decided them.  And of course
that is right and good.  But somehow those first ten or twenty cases on
that particular subject have to happen.  I believe that is what the INTA
authors were talking about.

>   The first thing netizens should expect of domain names is stability.
>We should not just expect it; we should demand it. It is not reasonable
>for a URL to suddenly point somewhere else just because some judge who
>doesn't understand the 'net yet says there's a trademark infringement.

Oh, so you have some decisionmaking body that you feel will get the right
answer more often than a court would?  Care to name that body?  NSI took on
that role, and has failed miserably at it.

>   They also want every registrant to specify "name and address of the
>designated agent for service of process". Does the Post Office require
>a designated agent for service of process before they let you use a
>postal address?

Yes, oddly enough they do.  It's there on the form that you sign to get a
post office box.  The words "service of process" don't appear on the form,
but it is what the "address" blank is for -- that reason and no other.
They want to know where to find you in case you do something bad with the
PO Box.

>] Again, there is no reason why this principle of civilized society
>] should not apply to activities on the Internet.
>
>   Except, perhaps, that the Internet is international in scope, and
>they've described a process designed for courts of limited geographical
>jurisdiction.

So what decisionmaking body do you say should handle this sort of problem?

>>From requirements for SLD application:
>] 
>] that applicant admits to the personal and subject matter jurisdiction
>] and venue of any competent tribunal in the country where the NIC resides
>
>   They want _all_ actions in U.S. courts! (The referenced document is
>proposing changes to the current InterNIC system).

Wrong, wrong, wrong.  There are about 180 NICs, in about 180 countries.

>   Furthermore, they want challengers to be able to choose _any_ court
>in the United States (not just the ones near Herndon, Virginia)! Is
>the choice of a court thousands of miles from the infringer's home a
>reasonable system of accountability?

It's already that way with toothpaste packages.  Any accused infringer who
feels they are being summoned to a court that is too far away can move for
dismissal for lack of personal jurisdiction, or for a change of venue.
This is so with toothpaste packages and with domain names.


---
Carl Oppedahl, Oppedahl & Larson, patent law firm
http://www.patents.com/ has hundreds of pages of answers to 
frequently asked questions on patent, copyright, and trademark law