Re: 60 day waiting period -- look at the facts!

[Carl Oppedahl <carl@oppedahl.com>]

At 04:49 PM 01/07/97 +0300, Kevin Brown wrote:

>OK Explain to me these facts:
>
>I have NetComm.ie. NetComm is not a trademark. It is a registereed business
>name. Netcomm is an Australian company netcomm.com belongs to Interoffice
>Network Communications in the US. There is a Netcomm in the UK and many I
>am sure Netcomms in the US.
>
>OK, The IAHC is here to "fix" TLDs. We are worried about trademark law. So
>again, I am in the Middle East, the Server for NetComm.ie is in Holland,
>NetComm is registered in Ireland. Where will the court case be?

I explain all this in my paper at <http://www.patents.com/nsi/iip.sht>.
Have you read it?

>Also any new iTLDs, where are the registrars? I might register a iTLD
>netcomm.biz first. So all the reigistered business name hoders and
>trademark people, what are they going to do? Sue me ? What court? Where?
>What jurisdiction?

See the above.

>Explain, I thought that registrars would be appointed all over the world.
>Is the IAHC going to instansiate a world court for TLD trademark disputes?

No, the IAHC proposal does no such thing.  The existing courts, which do
just fine in providing mechanisms of last resort for other trademark
problems, will be sufficient to handle domain-name-related trademark
problems too.

>You are all still viewing this from the US perspective. Carl, I admire your
>thoughts, but your experience is based upon US Law, with both parties in
>the US.

Again, please read my Harvard IIP paper.  I was not limiting my remarks to
cases with both parties in the US.

>There is NO INTERNATIONAL way to police trademarks nor any way to register
>in one place one trademark. 

There is.  It happens all the time.  The trademark owner simply figures out
which court has jurisdiction over the infringer, and sues the infringer
there.  Or, in cases where the domain name *in and of itself* is the
perceived problem, the trademark owner might also figure out which court
has jurisdiction over the registration authority (and thus, jurisdiction
over the *res*, namely over the domain name itself) and sues there.
Properly stated, this would be an "in rem" action against the property.

>Trademarks are the business of the holder and the infringer. This holds for
>any form of communication that the infringer uses the trademark in. It is
>up to the holder to protect the mark in any and all jurisdictions that the
>mark is registered in and there is infringement occuring.

Yes, that is correct.  You have provided the answer to the question you
posed above, namely what international way there is to police trademrks.

Please bear in mind that there are more ways to infringe a trademark than
by selection of a domain name.  Infringement might arise because of text in
the body of a web site, for example.  In that sort of case, the trademark
owner will have to go to some jurisdiction where the infringer may be sued,
and stop the infringer.