Sally...At the risk of being repetitive...If out of 800,000 .com URL users, only 400 have any involvement in a dispute resolution involving trademark controversy (either by NSI's vehicle or by court proceedings), then, accepting all you say to be true, the question still comes down to this:
Are the benefits that MAY be realized by 400 trademark holders and 400 URL holders significant enough to warrant imposing a major inconvenience and hassle on the 799,600 other URL users whose URLs will never be involved in a trademark dispute?
We can save 30,000 lives a year in the US by imposing a 20MPH speed limit on our highways...but we, as a society elect not to take advantage of that option. Even though the benefits of saving 30,000 lives are enormous, we determine as a society that to save those 30,000 lives by lowering the speed to 20MPH is too costly to our economy and to our personal need to get to where we want to go quickly...
Speed is at play here as well. It is quite consistant to agree with you, on one hand, that some of the benefits you predict may come true under a 60 day delay, and at the same time reject ANY delay at all, simply because the theoretical benefits of the 60 day wait to the 400 URL users who actually have encountered a need for the benefit far outweigh the costs imposed on the other 799,600 users who, with zero wait time, will never in their life encounter a trademark conflict over the use of their URL.
If a trademark rights holder has a problem with a URL, take all legal action necessary against the alleged infringer. Period.
----------
: From: Sally Abel <Sally_Abel@fwpa.com>
: To: iahc-discuss@iahc.org
: Subject: IAHC Proposal (Attacks Thereon)
: Date: Thursday, January 09, 1997 6:57 PM
:
:
:
: A number of folks on this list have questioned the 60 day
: waiting period, asking (a) what purpose it serves, and (b) why 60 days,
: rather than 10, 30, 59 or whatever. Many thoughtful responses have been
: posted to date, so I will try to avoid being (too) repetitive if
: possible.
:
: (a) Purpose of the waiting period.
:
: The primary purpose of a waiting period is to encourage early
: dispute resolution which should result in:
:
: * A reduction in litigation by encouraging dispute resolution
: before that point;
:
: * Fewer instances of domain name holders making significant
: investment in a domain only to lose it;
:
: * Increased certainty that a chosen domain can be developed
: without unanticipated loss of the domain down the road;
:
: * Decreased registry challenges.
:
:
: Many domain name applicants want an SLD that is or is capable of being
: more than part of a simple address. In fact, those who oppose a waiting period
: as being an imposition on business development when the IAHC proposal includes
: a random alphanumeric for those who do not want to wait 60 days, appear to
: believe that a domain name creates a valuable identity for the new business
: that the business should not have to wait 60 days for (a reference was made
: yesterday to the need to "brand"). This valuable identity is what is known to
: trademark owners as "goodwill", and it is this "goodwill" that is the essence
: of trademark rights. So, if you believe that it is important to preserve a
: domain name holder's goodwill, you can understand the importance of doing the
: same for a trademark owners.
:
: A waiting period is an attempt to strike a balance between the
: trademark owner's interest in preserving its goodwill, and the domain name
: applicant's interest in a domain name that may be perceived as generating
: "goodwill" or as an important business symbol. ("Trademark owner" should be
: read broadly to include other names which may be legally protectable in a
: commercial context, from business names and organization's names, all the way
: to celebrity's names).
:
: Combined with public notice of the application and related contact
: information, the waiting period gives the trademark owner time necessary to
: assess whether a particular domain may be a problem and to contact the
: applicant, before the name is awarded and the financial and emotional investment
: significant, to attempt to resolve the perceived problem. With a 60 day period,
: trademark owners will not have an incentive to sue first and ask questions
: later.
:
: Obviously there will be some litigation where the parties
: cannot resolve their differences amicably and the trademark owner
: believes litigation is necessary to protect trademark rights. But with
: a 60 day period, those instances should be infrequent, and the domain
: holder will be in a strong position to assess whether to proceed with
: the name in light of the challenge, again before making a significant
: investment in the domain.
:
: It is true that the waiting period proposed by IAHC does not legally
: require a challenger to raise a challenge during the waiting period (for such a
: legal requirement, we would have to go to Congress and the other 200+
: governments around the world)
:
: However, U.S. courts and most courts around the world already
: follow guidelines when granting preliminary injunctive relief (such as shutting
: off a domain name) -- specifically most courts won't grant such relief unless
: the challenger has acted very quickly to challenge the allegedly illegal conduct
: -- if the challenger waits, then he will lose his right to preliminary relief.
: The reason the courts require quick action to obtain preliminary injunctive
: relief is because it is unfair to grant it if the challenger has just sat on
: his/her rights while the challenged party continued the allegedly objectionable
: activity.
:
: How quickly a challenger must act varies with the circumstances,
: and varies from country to country. For example, someone seeking a preliminary
: injunction against trademark infringement in Germany must sue within 4-6 weeks
: of finding out about the infringement. In the U.S., the period is usually a
: longer and will depend upon how badly hurt both sides will be if the relief is
: or is not granted. For example, if the alleged infringer has already invested
: heavily in the allegedly infringing name and has used it for six months
: publicly, and the challenger knew about the name six months ago, but didn't do
: anything to challenge it, a court will "balance the equities" and will likely
: conclude that the challenger should have acted more quickly and the challenged
: party will be greatly harmed by a preliminary injunction -- so it will refuse to
: grant the preliminary injunction.
:
: This is how the waiting period is intended to work. By creating
: a system whereby a domain name applicant's intention to use a new domain
: name is published on a public register for 60 days before use,
: challengers will *as a practical matter* be forced into acting quickly
: during the waiting period. There will be no hard-and-fast legal
: requirement. BUT courts will look at the fact that the new name was
: published and that a waiting period was imposed and will be very
: reluctant to grant preliminary relief to a challenger who failed to act
: during the waiting period. This is basically true under most of the
: world's various trademark laws. And, of course, challengers (and their
: lawyers) will know this and will therefore be pushed into acting quickly
: if they want to shut down an allegedly infringing new domain name.
:
: Of course, it would be even better if all challengers *had* to raise
: their objections before expiration of the waiting period -- this would increase
: certainty and fairness. However, while this may be a laudable long-term goal,
: it cannot be implemented quickly in the short-term because it would require the
: passage of legislation in each country around the world.
:
: So, while not perfect, the purpose of the 60 day waiting period
: is to not only give challengers an opportunity to raise a challenge
: before someone invests in a domain name, but indeed to effectively
: require (to the extent possible) that such a challenge be raised before
: use is begun, so that a domain name user isn't put into the unfair
: position of using and investing in a domain name that will ultimately
: end up being taken away.
:
: (b) Why 60 days?
:
: The choice of 60 days is not arbitrary. In order for courts to
: hold challengers to raising their challenge within the waiting period,
: the period has to be long enough that no-one can argue that they didn't
: have enough time to raise a challenge. Unfortunately, it does take time
: for notice of a published domain name to reach interested parties, and
: for those parties to investigate the domain name, and for a demand letter
: to be sent and responded to, and for a challenger to pull together court
: papers -- if sufficient time isn't provided for in the waiting period for
: this activity to occur, then challengers will successfully argue that
: they shouldn't be held to acting within the waiting period, which is not
: what we want!
:
: Generally, the shortest period for acting to obtain preliminary
: relief in a trademark case is 4-6 weeks, as in Germany. But most
: countries allow substantially more time, usually several months and
: sometimes a year or longer (depending on the circumstances). The
: International Trademark Association's (INTA's) original proposal for a
: waiting period was 90 days in recognition of this norm. However, in view
: of the demands of "internet time," IAHC has chosen to propose 60 days,
: which is a short period of time, but probably still long enough that the
: courts should generally be willing to hold challengers to it. In
: addition, if a challenger acts early in the 60 day waiting period, then
: the waiting period will allow some time for the parties to work out an
: amicable resolution without actually going to court. If a waiting period
: of less than 60 days is adopted, we run a real risk of the courts
: deciding not to "enforce" the waiting period on challengers seeking
: preliminary injunctive relief.
:
:
:
: Sally Abel
: Not speaking on behalf of the IAHC
: