How does a 60-day waiting period promote URL stability? (was something else)

[Carl Oppedahl <carl@oppedahl.com>]

At 12:26 AM 01/14/97 -0500, Alan Sullivan wrote:

>Dave Crocker wrote:

>>         The purpose of the 60-wait is to increase the stability of the name
>> after the wait.
 
>But how does a 60 day waiting period accomplish this? Maybe I am just a
>bit slow in understanding why a 60 day waiting period will increase
>the inherent stability of a name. 

I have not been keeping count, but there have been at least two hundred
posts on this topic.  At least twenty of those posts were directed to
answering this question.  The posts to this group are archived by IAHC and
any interested party should go back and reread them.

I don't mind explaining it again.

At present it is a commonplace bit of behavior among certain trademark
owners (owners of non-unique trademarks such as "clue" or "perfection", for
example) that when they go to register a domain name and find it was
already registered by someone else, they try to claim that now, perhaps
years after the domain name was registered, the court should force the
domain name owner to hand it over to the trademark owner.

In the kinds of cases I am talking about, the trademark is generally one
that is used by many companies in many different areas.  None of the
companies is infringing the trademark of the others because the companies
are in different lines of business.

Despite the fact that many years will have passed since the domain name was
registered, the trademark owner shows no apparent embarassment at having
been asleep all this time, and presents (or threatens to present) the claim
in court.

Look at it from the point of view of the (innocent) domain name owner.
They have been quietly running their business, infringing no one's
trademarks, and now after a couple of years there is a threat that, if
carried out, will destroy their business.  

This sort of thing simply should not be happening.  Domain names need to be
stable, URLs need to be stable, or else the Internet won't work, the Web
won't work, and healthy growth and investment by domain name owners needs
to be encouraged.

So what can be done to reduce this problem in which someone registers a
domain name (indeed, perhaps does a trademark search first and concludes,
correctly, that they won't be infringing any trademarks if they proceed),
invests a couple of years of sweat and toil and money, and then is
suddently told that the mere registration of the domain name is causing
offense to some trademark owner and they have to hand it over?

More accurately, what could be done that is within the short-term ability
of the Internet community, that can reduce this problem?

The one course of action that falls within these parameters is, a built-in
waiting period.  A waiting period that is uniformly applied, well
publicized, well explained, and clearly set forth so that courts will know
all about it and why it was put into place.

The idea is to *compress* the vulnerability to some extent (hopefully, to a
great extent).  The idea is (after a few court cases have been decided)
that if some trademark owner who (if they would only admit it) really has
no gripe other than that they wish they had signed up for a domain name
before someone else, sleeps until a couple of years later, and only then
goes to court, the judge will look at them and say:

"where were you during the 60-day opposition period?"

They won't have any decent answer, and the judge will send them home.

Yes of course if this waiting period accomplishes some or all of its goal,
then there will be people who sign up for domain names and who encounter
trouble during the 60 days.  Hopefully it will be a blessing;  if the
proposed name really is a trademark problem (e.g. the trademark is a unique
one, held by only one company worldwide) they will find out the problem
right away instead of years later.  And if the proposed name isn't really a
problem but there is a grabby trademark owner out there that isn't really
entitled to grab the domain name, but is going to spend lots of money
anyway to cause trouble, well, it's just as well to know that now instead
of a couple of years from now.

And if the domain name survives the 60 days it will, hopefully, be less
vulnerable because courts will know to ask challengers for some good reason
why they didn't speak up during the 60-day period.

>OK - Simple question:

>If I register a name - and wait 60 days - will this protect my name from
>being claimed by any owner of a trademark of that name?

A review of the above should make clear that the answer is "no".  Any
self-imposed waiting period is going to be ineffectual.  It wasn't "a
waiting period that is uniformly applied, well publicized, well explained,
and clearly set forth so that courts will know all about it and why it was
put into place."


---
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