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

[Carl Oppedahl <carl@oppedahl.com>]

At 01:13 AM 01/07/97 +0000, Jeff Williams wrote:
>Michael,
>
>  Please read below your comments.
>
>Michael Dillon wrote:
>> 
>> On Mon, 6 Jan 1997, Carl Oppedahl wrote:
>> 
>> > This "I didn't know about the sixty days" excuse will get used at most
>> > once.  Then some judge will laugh the trademark owner out of court,
and it
>> > will be written up in the casebooks, and it will be unavailable from that
>> > day forward.
>> 
>> That's a pretty big presumption. I don't think the courts are that
>> predictable. And if this *DID* happen then it would encourage companies
>> to review the 60 day lists and dispute any name that they might possibly
>> want to have an interest in at some future date because the courts will
>> have set the 60 day point as a magic window. At this point the domain name
>> owner will quite rightly sue IAHC, CORE and the registries for having
>> created such an untenable situation.
>
>  Yes, very true.  It would also set up a whole new legal assistance
>industry that would provide for a seervice for "60 day lists".  That
>would be a exercise in legal wrangeling.

I am afraid you can't have it both ways in your attempts to find reasons
why the 60-day period is supposedly ineffectual.

Recall that one of the system goals (I would suggest, the chief system
goal) is for URLs and domain names to be stable.  Everybody seems to be
eager to delete the following table in their responses, so for emphasis I
will repeat it.

Domain name     Date registered         date challenged
clue.com        June 1994               early 1996
regis.com       April 1993              mid-1996
dci.com         August 1993             early 1996
disc.com        January 1993            mid-1996
juno.com        December 1994           late 1996

How would you like to be one of these domain name owners?  How would you
like to be minding your own business, not infringing anybody's trademarks,
and then be told (two or three years out) that you are going to be put out
of business because someone else wishes they could have your domain name?

The problem (and it will increase with time) comes up where somebody uses a
domain name for two or three years without, apparently, infringing
anybody's trademarks, and then somebody who owns a trademark decides they
covet the domain name.  And then they figure they may as well try to grab
the domain name, despite the passage of some years.  I have seen this
dozens of times in counseling domain name owners.

This sort of thing, where you can be minding your own business for years
and then have your domain name grabbed away from you, is absolutely
intolerable on the Internet.  It is destructive.  It makes it diffcult for
people to justify investing their sweat and money in their Internet-related
business.

Enter the 60-day period proposed in the IAHC document.  One critic, above,
says "I don't think the courts are that predictable" in response to my
suggestion that courts would come to understand that a merely covetous
trademark owner (one that cannot identify any actual trademark infringement
in the conduct of the domain name owner, but that merely wishes it could
possess the domain name) should have griped within the 60 days and cannot
come in two or three years later.  The criticism is that nobody would
attach significance to the 60 days, and apparently the suggestion is that
in the future under IAHC, as now, the vulnerability of a domain name to
trademark coveting would persist for years.

Here's where we get to the "you can't have it both ways" aspect of the
criticism.  The critics go on to say that a "legal assistance industry"
would be set up that would vigorously screen applied-for domain names
during the 60-day period.  The impression given is that everyone --
trademark lawyers, courts, large companies with lots of trademarks -- would
be reminded day and night of the monitoring services and the fact that
there is this 60-day period.

And there you have it.  Everyone would know of the 60 days, and judges
would have (assuming the "exercise in legal wrangling" comes to exist) a
steady parade of trademark owners through their courtrooms, and would know
all about the 60-day period.  And would indeed appreciate that a trademark
owner who comes in two or three years after a domain name was put into
service had better have some good excuse why it stood idly by for those two
or three years, and failed to pipe up during the 60 days.
 
Look, the 60 days isn't my idea.  Look at my paper at
<http://www.patents.com/nsi/iip.sht> to see what my idea was and is.  You
won't find 60 days in *my* paper.  But I see people bashing the 60 days,
and expressing their contempt for the nasty lawyers that they feel are
behind the 60-day provision, and I feel I have to speak up.  The fact is
that IAHC's proposal does favor URL stability, and I feel that URL
stability is extremely important, probably the single most important design
goal from the point of view of domain name owners.  In other words, if "the
good of the Internet" is defined to be centered on URL stability, then the
60-day provision is indeed for the good of the Internet.


---
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