Re: where the waiting period came from

[John Leslie <john@jlc.net>]

Carl Oppedahl wrote:
> John Leslie wrote:
>> Rick H. Wesson wrote:
>>> 
>>> 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.

   I stand corrected.

> Your "obviously a group of lawyers" is also incorrect.

   I've checked my dictionary -- "obviously" means about what I thought
it did -- evidence right in front of you (from ob and via). But if I had
thought about it another 30 seconds, I probably would have chosen the
word "evidently" instead -- I don't like starting flame-wars.

> 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.)

>From http://plaza.interport.net/inta/member.htm :
]
] SITE UNDER CONSTRUCTION The Member Gateway and Searchable
] INTA Membership Directory are Under Construction. Check back
] December 23, 1996.
] ...
] MEMBERS ONLY: You have requested access to a resource which will be
] provided only to members of INTA... 

   Alas, this doesn't tell me much. Organizations such as this typically
have lawyer members from trademark firms and lawyer members from the
companies who use the services of trademark firms.

   In any case, what I actually meant to say was that the document was
evidently written by lawyers; and responding to a group of lawyers
seemed like an exercise in futility.

> 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.

   No doubt it looks that way to a lawyer.

>> 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.) 

   "Asking nicely", I presume, means the usual lawyerese threatening
unnamed "appropriate action" if the "infringement" doesn't cease.

> I can't see any reason why domain names should be special in this
> regard. 

   Because domain names are addresses. (I really hate repeating myself!)

> What "other reasonable alternatives" are you thinking of, by the way? 

   Mostly, I was thinking arbitration. If the domain holder accepts
arbitration and the "victim of infringement" chooses to accept it too,
I would call that a "reasonable alternative".

> 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.

   Exactly. The "victim" has many options available, one of which is
going to court. I object only to putting in language which has the
effect of favoring court actions over other alternatives such as
arbitration.

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

   Read on...

> 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. 

   Thank you.

> But somehow those first ten or twenty cases on that particular subject
> have to happen. 

   Stipulating that we need "ten or twenty", that's still a mighty small
portion of the number of domains registered. I don't think we need to be
so draconian for the benefit of 1/100th of one percent. Lawyers are
resourceful people -- they'll find a way to have those ten or twenty
cases without our help. ;^)

>> 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? 

   I think you miss my point. URL's should be predictable, period. A pet
rock would get the right answer more often than a judge on this issue.

   Which is not to say that there aren't real infringement problems which
should be enjoined -- just that making the URLs unstable is never the
appropriate remedy.

>> 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,

   Neither does the word "agent", if memory serves...

> but it is what the "address" blank is for -- that reason and no other.

   Hmm... I'll try to remember to ask our Postmaster. I'd bet he can come
up with some other reason...

   In any case, our Post Office happily delivers mail to any appropriate
mailbox placed and identified by a resident. I'm quite sure I never had to
even fill out a form with a blank for "Address".

>>] 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?

   There _is_ no "decisionmaking body" competent to do this.

   I suggest arbitration whenever the parties can agree on an arbiter, and
recognize that the current jumble of available courts will be used if they
can't agree on an arbiter.

   I want language that will encourage arbitration, rather than encourage
court actions.

>>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.

   I stand corrected. They want _all_ actions involving .com, .net, .org
and so forth in U.S. courts.

>> 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.

   Not if their language is adopted. They want domain holders to waive
exactly that right.

> Carl Oppedahl, Oppedahl & Larson, patent law firm

--
John Leslie <john@jlc.net>