Re: NSI v. Clue (was: Trademarks, random strings, sharing, reserved words)

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

Dale,

  Please read below your last comment.

Dale Mead wrote:
> 
> >Many people have held out hope for the interpleader process.
> >Unfortunately, the
> >only time it was tested in the courts, it was held to be unavailable on the
> >grounds that the registry was not a disinterested stakeholder, but rather
> >was a
> >party to a contract (the registration itself) that was fundamental to the
> >lawsuit. (NSI v. Clue Computing, DC Colo, Civ Action No. 96-D-1530, 10/29/96).
> >In other words, the registrar created and issued the domain name for the
> >purpose
> >of its use on the Internet;  it cannot therefore remove itself from the
> >conflict.
> 
> I don't read NSI v. Clue as grimly.  It is absolutely true that if a
> registry wants to invoke interpleader, it *must* be a disinterested
> stakeholder, or as the court said, "[W]here he stands as a wrongdoer with
> respect to the subject matter of the suit or any of the claimants, he
> cannot have relief by interpleader." The holding was that there were claims
> of wrongdoing associated with NSI's handling of the res, and therefore, NSI
> couldn't just walk away.  IMHO, the case was rightly decided.
> 
> That is a far cry from saying that interpleader is not available to
> registries.  (In fact, the judge, in dicta, said that he believed that such
> a case could be framed in interpleader).  The problem then is how a
> registrar must act in order to be entitled to interpleader.  The existence
> of a contract being the registrar and the initial registrant does not
> preclude interpleader--the most common use of interpleader is in escrow
> environments where there are plenty of contracts.  Where NSI failed in this
> case was with the claims that NSI breached that contract.  That
> unfortunately enabled the court to avoid considering the more interesting
> questions:
> 
> 1.  Is a registrar/steward itself liable to a trademark owner when the
> court finds that a domain infringes?  (This question probably needs to be
> resolved before any interpleader request will be allowed to move forward.
> However, it is also true that interpleader might be the best place for
> registrars to raise the issue).
> 
> 2.  How much mediation and dispute resolution activity may the stakeholder
> engage in before being at risk of being drawn in as party?  The traditional
> advice to stakeholders is to stay completely at arms length from any
> disputes.  I would be very uncomfortable with one of my clients claiming to
> be a stakeholder and engaging in the level of dispute resolution that NSI
> has been.
> 
> >My point is that, if trademark issues are ignored now, registries may (and
> >probably will) find themselves faced with liability in trademark disputes
> >in the
> >future.  The measures contained in the IAHC draft are intended in part to
> >avoid
> >or delay that.
> 
> Agreed.  But I wonder how well the specifics of the draft accomplish your
> purposes.  I can't imagine it stopping any lawyers who otherwise would from
> including a registrar in a suit, but I can imagine suits arising out of it.

  I don't read the draft as accomplishing the perposes that you refer
to.
And it would certainly not stop any layer or company from filing durring
or after any period of time, reguardless of length.  Hence, as part of 
the draft, it serves no functional perpose other than to delay
registration
for any arbitrary reason that may be deemed suitable.  Whisc does not
serve
the user community.
> 
> Dale
> 
> representing myself, not my employer

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