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

[Jeff Williams <jwkckid1@ix.netcom.com>]

Carl,

  Please read below your your comments.

Carl Oppedahl wrote:
> 
> 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?

  Carl, I respect your opinion greatly in these matters from a legal
perspective.  And no, I would not like to be one of the list of domain
names you mention here, of course.  But this is a matter for NSI and
the legal system, not a matter that IAHC should involve itself in as 
a matter of policy.  That is my argument in total.  I just think it
is a poor buisness and org. practice.
> 
> 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.

  I am sure this occurs frequently.  And possibly there should be some
Government regulation outlined to address this problem.  But I still
see no argument in favor of IAHC involving itself in this situation
with requiring a 60 day waiting period.  It has no force of law or
regulation, and therefore non effectual.  That would only envite
law suites upon the IAHC and possibly any or all of it's members.
this in turn would cast a shadow over their effectivness and not
serve the user community.
> 
> 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.

  Very good argument, Carl.  My problem with this argument, is why 60
days?
Why not 30 or 10 days.   Also how, and under what justification can you 
provide for this long of a delay befor the use of that TLD for a
Registry
to effect.  Every day cost money and delays users without any recourse.
I find this close to restraint of trade.   

> 
> 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.

  I realize that the 60 day is not your idea.  As I said befor, I
respect
your possition and knowledge in this area of law.  But in my opinion it
creates more problems than it solves.

  I cannot, and have pointed out that the 60 day waiting period from 
one perspective MAY asist in URL stability, but in several others that
have been pointed out in previous postings as well as Micheals and
this response of mine I believe have shown some problems with your
argument that the 60 day waiting limit is good fro the internet.
Internationaly alone, this period may not be enforcable.  In some 
countries I know that it is not.  There is also no international
legal precident currently under International law that would be 
inforcable "World Wide"  for this 60 day provision.
> 
> ---
> 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

Regards,
-- 
Jeffrey A. Williams
DIR. Internet Network Eng/SR. Java Development Eng.
Information Eng. Group. 
Phone :972-447-1878
E-Mail jwkckid1@ix.netcom.com