Re: Who really benefits from 60-day period?

[Carl Oppedahl <carl@oppedahl.com>]

At 10:37 PM 01/07/97 -0500, Leo Smith wrote:
>: From: Carl Oppedahl
>: But yes, I suggest that even if the ratio is 4000 to one, the waiting
>: period is not crazy.  Keep in mind that all 3999 of the people whom you
>: suggest would be needlessly going through a wait, do in fact benefit, as
>: each of them enjoys ownership of a domain name that is less vulnerable to
>: reverse domain name hijacking than it would be in the absence of the
>60-day
>: period.
>
>The "innocent" users receive NO BENEFIT WHATEVER!!!

I have explained this several times, but I don't mind explaining it again.
The "innocent users" who have survived the 60-day period have a quite
concrete benefit, namely that it will be much more difficult for a merely
covetous trademark owner to disturb their use of the domain name.

>Using .com for an actual case history, so far  800,000 .com URL users have
>registered in total, and  799,800 of them have had no problem with claims
>from trademark rights holders.

No, I am sorry to say that you are basing your statement on incorrect
facts.  According to NSI, it has handled some 350 domain name disputes.  In
addition, several dozen have been in the courts that were not in NSI's
secret court.  Finally, for each dispute that has found its way to real
court or to NSI's secret court, there are (I estimate based on client
experience) at least ten or twenty more that have at least reached the
stage of a "cease and desist" letter.  So we are talking about many
thousands of domain name owners who have had problems with claims from
trademark owners.  

>If all 800,000 .com URL registrations had instead been subjected to the 60
>day wait, those same 799,800 URL users that had no problem without the wait
>would still have no problem if the wait had been imposed.

Sorry, but you are committing that common fallacy of using hindsight.  It's
a bit like talking about the X number of people who went from age 21 to age
65 without getting mugged -- in retrospect they "had no problem" with
getting mugged.  But back when they were 21 they didn't know yet if they
would be mugged in the subsequent 44 years.

Without the IAHC proposal, one can get mugged at any time after obtaining
the domain name.

Under the IAHC proposal, the domain name owners who manage to pass 60 days
face a future in which the odds of getting mugged are smaller.  

>The only URL users who MAY (but not necessarily WILL) benefit from the 60
>day wait are a percentage of the 200 URL users (out of 800,000 total users)
>who, without the wait ended up in a trademark dispute, but with the wait,
>might have avoided a dispute. The percentage of URL users in trademark
>disputes is such a minuscule part of the total...less than ONE TWENTIETH OF
>ONE PERCENT!

Again, you commit that fallacy.  If one were to be persuaded by your logic,
the only people who benefit from car insurance are those who turn out to
have had car accidents.  But that makes sense only in retrospect.  The fact
is that those who sign up for car insurance don't know yet if they are
going to be in a car accident.  Thus they benefit from some level of peace
of mind simply due to having the insurance.

>The only real benefit of the wait goes to those whose responsibility it is
>to protect existing trademark rights. The wait becomes an additional piece
>of armament in the trademark defender's arsenal.  

Sorry, but you have this backwards.  Under RFC 1591, or under the present
NSI policy, the piece of armament is usable the day a domain name is
registered, and any time thereafter, for years or decades.

Under the IAHC proposal, the piece of armament is of some strength in the
first 60 days, but diminishes drastically in its potency with the passage
of time.

In a very real sense, the IAHC proposal works *against*, not *for*, the
selfish interest of covetous trademark owners.

>If WIPO sets up their own
>database on trademarks, and if WIPO's computers can have daily access to
>new CORE URL registrations, then trademark dispute letters from WIPO should
>go out very quickly to the new registrant, putting the registrant on notice
>that a trademark infringement claim may exist. 

I am sorry but your sense of the present or possible roles of WIPO are
quite mistaken.  There is no single place now, not at WIPO nor anywhere
else, that all the trademarks of the world are kept in a database.  Nor
will there ever be, at WIPO or anywhere else.  The only trademark
information WIPO has is based upon trademark filings that happen to have
been done at WIPO.  But by far the vast majority of trademark applicants
file elsewhere than WIPO.

It is also quite mistaken to imagine that WIPO (or any other entity) would
accept the responsibility of looking at every new domain name one by one
and evaluating whether it is likely to amount to a trademark infringement
in some country.

Are you aware of how many countries have trademark offices?  It's around
180.  The majority of them have no online database, no way to search except
by hand in paper files.  Nobody, not WIPO nor anyone else, is going to
search all countries for each possible new domain name.


>The responsibility to police
>the Internet in search of trademark infringers rests with the trademark
>holder. To hold up the rights of 799,800 URL users who infringe on NO
>TRADEMARK WHATEVER, just to catch the 200 who may infringe, is tremendously
>unfair.

Again, it seems you don't get it.  The idea here is not to catch "the 200
who may infringe" (and I still don't see how you justify that number).  The
idea here is to set up a legal presumption that will reduce risk of
needless loss for the other 799,000 domain name owners.


---
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