Re: 60 day period

[Vince Wolodkin <wolodkin@digitalink.com>]

Carl Oppedahl wrote:
> 
> At 11:38 AM 01/10/97 -0500, Vince Wolodkin wrote:
> >Sally Abel wrote and wrote and wrote and wrote....
> >
> >>From her posting I can deduce the following points:
> >
> >1)  INTA knows absolutely nothing about business on the internet.
> 
> I have tried to hold my tongue, but this statement is out of line.  The
> Internet Subcommittee of INTA and the members of IAHC that belong to INTA
> are all extraordinarily experienced in this area.  What's more, they were
> and are advised by many other members of the Internet community who know as
> much as there is to know about business on the Internet.  I, as a frequent
> advocate in favor of businesses on the Internet (e.g. Roadrunner Computer
> Systems v. NSI), know quite a bit about business on the Internet, and INTA
> members have been quite gracious about receiving suggestions from me.  Mr.
> Wolodkin, you owe an apology to those whom you have insulted by this
> statement.
> 

As I said before, this is a fast paced industry.  Time to market is
everything, and if you can't recognize that you aren't very observant.

> >2)  The waiting period is useless since by her own words courts already
> >recognize that someone being infringed upon must act relatively quickly.
> 
> You are mistaken in the extreme.  Courts at the present time seem to have a
> bit of difficulty discerning the difference between a case in which some
> Internet business is, by its conduct, infringing someone's trademarks, and
> a case in which the only thing going on is that someone with a trademark
> wants to take away someone's domain name.  Courts have not yet quite caught
> on that if the only supposed basis for a trademark claim is the mere
> registration of a domain name, then the lawsuit probably should have been
> brought long ago.
> 
> You are also missing completely the distinction that Ms. Abel was talking
> about, between a grant or denial of *preliminary* injunctive relief, on the
> one hand, and permanent injunctive relief on the other.
> 

I don't care.  A registries job should not have anything to do with
discerning any policies assist anyone in getting/fighting off any
injunctions whether preliminary or permanent.  This whole topic is out
of scope for what a registry should be doing.

> >3)  The only argument given for non-use was so that the domain applicant
> >wouldn't become attached to the domain name.
> 
> No, that was not the only argument.  Fortunately there is an archive of
> this list, so that people can go back and see what the other arguments were.
> 

The only argument given in Ms. Abel's posting for non-use was
attachment.  The other arguments about how a court might look on it are
pointless because these were examples of publication and public notice.
Non-use makes no difference.  It only ensures that the registry will be
sued early and often.

> >Wow!  I am so happy a representative of INTA is on the IAHC.  In
> >retrospect this was probably a mistake(ditto for WIPO) since as Mr Higgs
> >points out RFC 1591 explicitly says that registries WILL NOT be involved
> >in trademark issues but will instead just provide contact info to both
> >parties.
> 
> RFC is pretty darn good.  As you will see from my paper
> <http://www.patents.com/nsi/iip.sht> I think RFC 1591 is pretty darn good.
> But I don't see how it follows, as the night follows the day, that
> divergence from RFC 1591 means that something "is probably a mistake".  I
> also don't see how it follows from RFC 1591 that no one from the trademark
> community should play any role in trying to figure out what to do next.
> 

RFC 1591 is what we have.  Anyway, why should trademarks have anything
to do with domain names.  Why should the registry be involved in
protecting anyone.  This is the fatal error in your reasoning.  By
implementating methods to aid/avoid/whatever legal recourse, the draft
document makes the same type of mistake as NSI.  A registry should be a
registry and nothing more.

> >And as I have siad before, ANY attempt to - through registry policy -
> >alleviate perceived problems in regard to points of law will severely
> >backfire, one only needs to look as far as NSI to know this is so.
> 
> Wrong.  NSI tried to (and continues to try to) conduct its own court in
> absentia, leading to its getting sued by domain name owners who don't
> particularly like that NSI doesn't invite them to its trials.  The IAHC
> proposal does the exact opposite, avoiding any trademark decisionmaking by
> the registry.
> 

You are right here, it is IAHC that is doing trademark decisionmaking. 
Face facts Carl, just because you like this policy doesn't make it any
less intrusive and overbearing than NSI's.

> >Scrap everything in the draft that speaks to trademarks.
> 
> Nothing in the draft speaks to trademarks, other than to say that the
> registry will not evaluate trademark claims.
> 

Wrong again.  I think you should re-read the pertinent sections of the
draft.  The section on trademarks and 60 day period makes it fairly
clear that the 60 day period is there to protect domain holders(from
trademark holders) and trademark holders.

I just don't see the point.  The registry will be putting no-one on
hold.  They are waiting for a court to decide.  If a trademark holder
can get anjunction from a court, only then should the registry act.

The only legitimate question that should be addressed in the draft, is
what courts will be recognized as legitimate.  I mean I recently heard
that harrods had won some case regarding harrods.com but admit to not
knowing the particulars.  Does a "local" or "national" court have the
ability to grant license to a name in an international space.  Those of
you who have been following along should note my previous calls for
locality based names.

> Carl Oppedahl

Vince