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Re[2]: IAHC Proposal (Attacks Thereon)
- Date: Sun, 12 Jan 1997 13:31:38 -0800
- From: Sally_Abel@fwpa.com (Sally Abel)
- Subject: Re[2]: IAHC Proposal (Attacks Thereon)
Leo:
You asked:
>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 have a basic disagreement as to the
extent of the problem. My experience
tells me that it is much more profound
than the 400 or 4000 numbers being batted
around in some recent mail.
Another way to spin the numbers would be
to start with the 800,000 figure, take
away the deliberate "pirates" (some
estimates I have seen put that number as
high as 100,000), then take away those
who don't feel the need for a vanity SLD
and are just as happy with a random
alphanumeric for which there would be no
waiting period (see the draft). Of the
remaining unknowable number (at this
point) take away those for whom the 60
day period is not a burden (also an
unknowable number), because the applicant
a)is not in a hurry; b)has other
domains/accounts available; c)has worked
the 60 day period into a business plan;
d)some combination of the above and/or
for entirely different reason(s); and do
a cost/benefit analysis from there.
Sally
Not speaking for the IAHC
<html><head></head><BODY bgcolor="#FFFFFF"><p><font size=2 color="#000000"
face="Arial">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:<br>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?<br>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 quuickly...<br><br>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.<br>If a
trademark rights holder has a problem with a URL, take all legal action
necessary against the alleged infringer. Period. <br><br>----------<br>: From:
Sally Abel <<font color="#0000FF"><u>Sally_Abel@fwpa.com</u><font
color="#000000">><br>: To: <font
color="#0000FF"><u>iahc-discuss@iahc.org</u><font color="#000000"><br>: Subject:
IAHC Proposal (Attacks Thereon)<br>: Date: Thursday, January 09, 1997 6:57
PM<br>: <br>: <br>: <br>:
& A number of folks on this list
have questioned the 60 day <br>: waiting period, asking (a) what purpose it
serves, and (b) why 60 days, <br>: rather than 10, 30, 59 or whatever. Many
thoughtful responses have been <br>: posted to date, so I will try to avoid
being (too) repetitive if <br>: possible. <br>:
<br>:
(a) Purpose of the waiting
period. <br>: <br>:
&n
bsp; The primary purpose of a waiting period is to encourage early
<br>:
&n
bsp; dispute resolution which should result in:<br>:
<br>:
&n
bsp; * A reduction in litigation by encouraging dispute
resolution <br>:
; &
nbsp; before that point;<br>: <br>:
&n
bsp; * Fewer instances of domain name holders making
significant <br>:
&n
bsp; investment in a domain only to lose it;<br>:
<br>:
&n
bsp; * Increased certainty that a chosen domain can be
developed <br>:
&n
bsp; without unanticipated loss of the domain down the road;<br>:
<br>:
&n
bsp; * Decreased registry challenges.<br>:
<brr>: <br>:
Many domain name applicants want
an SLD that is or is capable of being <br>: more than part of a simple address.
In fact, those who oppose a waiting period <br>: as being an imposition on
business development when the IAHC proposal includes <br>: a random alphanumeric
for those who do not want to wait 60 days, appear to <br>: believe that a domain
name creates a valuable identity for the new business <br>: that the business
should not have to wait 60 days for (a reference was made <br>: yesterday to the
need to "brand"). This valuable identity is what is known to
<br>: trademark owners as "goodwill", and it is this
"goodwill" that is the essence <br>: of trademark rights. So, if
you believe that it is important to preserve a <br>: domain name holder's
goodwill, you can understand the importance of doing the <br>: same for a
trademark owners.<br>:  p;<br>:
A waiting period is an attempt
to strike a balance between the <br>: trademark owner's interest in preserving
its goodwill, and the domain name <br>: applicant's interest in a domain name
that may be perceived as generating <br>: "goodwill" or as an
important business symbol. ("Trademark owner" should be <br>: read
broadly to include other names which may be legally protectable in a <br>:
commercial context, from business names and organization's names, all the way
<br>: to celebrity's names).<br>: <br>:
Combined with public notice of
the application and related contact <br>: information, the waiting period gives
the trademark owner time necessary to <br>: assess whether a particular domain
may be a problem and to contact the <br>: applicant, before the name is awarded
and the financial and emotional investment<br>: significant, to attempt to
resolve the perrceived problem. With a 60 day period,<br>: trademark
owners will not have an incentive to sue first and ask questions <br>:
later.<br>: <br>:
Obviously there will be some
litigation where the parties <br>: cannot resolve their differences amicably and
the trademark owner <br>: believes litigation is necessary to protect trademark
rights. But with <br>: a 60 day period, those instances should be
infrequent, and the domain <br>: holder will be in a strong position to assess
whether to proceed with <br>: the name in light of the challenge, again before
making a significant <br>: investment in the domain.<br>:
<br>:
It is true that the waiting
period proposed by IAHC does not legally <br>: require a challenger to raise a
challenge during the waiting period (for such a <br>: legal requirement, we
would have to go to Congress and the other 200+ <br>>: governments around the
world)<br>: <br>:
However, U.S. courts and most
courts around the world already<br>: follow guidelines when granting preliminary
injunctive relief (such as shutting <br>: off a domain name) -- specifically
most courts won't grant such relief unless <br>: the challenger has acted very
quickly to challenge the allegedly illegal conduct<br>: -- if the challenger
waits, then he will lose his right to preliminary relief. <br>: The reason
the courts require quick action to obtain preliminary injunctive <br>: relief is
because it is unfair to grant it if the challenger has just sat on <br>: his/her
rights while the challenged party continued the allegedly objectionable <br>:
activity.<br>: <br>:
How quickly a challenger must
act varies with the circumstances,<br>: and varies from country to country.
For example, someone seekiing a preliminary <br>: injunction against
trademark infringement in Germany must sue within 4-6 weeks <br>: of finding out
about the infringement. In the U.S., the period is usually a <br>: longer
and will depend upon how badly hurt both sides will be if the relief is <br>: or
is not granted. For example, if the alleged infringer has already invested
<br>: heavily in the allegedly infringing name and has used it for six months
<br>: publicly, and the challenger knew about the name six months ago, but
didn't do <br>: anything to challenge it, a court will "balance the
equities" and will likely <br>: conclude that the challenger should have
acted more quickly and the challenged <br>: party will be greatly harmed by a
preliminary injunction -- so it will refuse to<br>: grant the preliminary
injunction.<br>: <br>:
This is how the waiting period
is intended to work. By creating <br>: a system whereby a domainn name
applicant's intention to use a new domain <br>: name is published on a public
register for 60 days before use, <br>: challengers will *as a practical matter*
be forced into acting quickly <br>: during the waiting period. There will
be no hard-and-fast legal <br>: requirement. BUT courts will look at the
fact that the new name was <br>: published and that a waiting period was imposed
and will be very <br>: reluctant to grant preliminary relief to a challenger who
failed to act <br>: during the waiting period. This is basically true
under most of the <br>: world's various trademark laws. And, of course,
challengers (and their <br>: lawyers) will know this and will therefore be
pushed into acting quickly <br>: if they want to shut down an allegedly
infringing new domain name.<br>: <br>:
Of course, it would be even
better if all challengers *had* to raise <br>: their objections before
expiration of the waiiting period -- this would increase <br>: certainty and
fairness. However, while this may be a laudable long-term goal, <br>: it
cannot be implemented quickly in the short-term because it would require the
<br>: passage of legislation in each country around the world. <br>:
<br>:
So, while not perfect, the
purpose of the 60 day waiting period<br>: is to not only give challengers an
opportunity to raise a challenge <br>: before someone invests in a domain name,
but indeed to effectively <br>: require (to the extent possible) that such a
challenge be raised before <br>: use is begun, so that a domain name user isn't
put into the unfair <br>: position of using and investing in a domain name that
will ultimately <br>: end up being taken away.<br>:
<br>:
(b) Why 60 days?<br>:
<br>:
&nnbsp; The choice of 60 days is not
arbitrary. In order for courts to<br>: hold challengers to raising their
challenge within the waiting period, <br>: the period has to be long enough that
no-one can argue that they didn't <br>: have enough time to raise a challenge.
Unfortunately, it does take time <br>: for notice of a published domain
name to reach interested parties, and <br>: for those parties to investigate the
domain name, and for a demand letter <br>: to be sent and responded to, and for
a challenger to pull together court <br>: papers -- if sufficient time isn't
provided for in the waiting period for <br>: this activity to occur, then
challengers will successfully argue that <br>: they shouldn't be held to acting
within the waiting period, which is not <br>: what we want!<br>:
<br>:
Generally, the shortest period
for acting to obtain preliminary <br>: relief in a trademark case is 4-6 weeks,
as in Gerrmany. But most <br>: countries allow substantially more time,
usually several months and <br>: sometimes a year or longer (depending on the
circumstances). The <br>: International Trademark Association's (INTA's)
original proposal for a <br>: waiting period was 90 days in recognition of this
norm. However, in view <br>: of the demands of "internet time,"
IAHC has chosen to propose 60 days, <br>: which is a short period of time, but
probably still long enough that the <br>: courts should generally be willing to
hold challengers to it. In <br>: addition, if a challenger acts early in
the 60 day waiting period, then <br>: the waiting period will allow some time
for the parties to work out an <br>: amicable resolution without actually going
to court. If a waiting period <br>: of less than 60 days is adopted, we
run a real risk of the courts <br>: deciding not to "enforce" the
waiting period on challengers seeking <br>: preliminary injunctive relief.<br>:
&nnbsp; <br>:
&n
bsp; &nbs
p;
<br>:
&n
bsp; &nbs
p;
<br>: Sally Abel<br>:
Not speaking on behalf of the IAHC<br>:
</p>
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