Re: IAHC Proposal (Attacks Thereon)

[Vince Wolodkin <wolodkin@digitalink.com>]

Carl Oppedahl wrote:
> 
> At 04:00 PM 01/13/97 -0800, Kent Crispin wrote:
> 
> >Carl Oppedahl allegedly said:
> >
> >[...]
> >
> >> How many domain names are there?  Seven hundred thousand?  That's how big
> >> the problem is, if their domain names aren't sufficiently secure against
> >> loss to covetous parties.
> >
> >The goal of the 60 day wait is to reduce litigation.  Therefore, the
> >size of the problem is precisely the amount of litigation, that is,
> >the dozen of so cases that we know about.  The number of consultations
> >and inquiries you or anybody else has had is far, far less significant
> >than the number of lawsuits.  To see this, consider the case where
> >there were zero lawsuits, and lots of consultations.
> 
> I am sorry to say this, but you are quite mistaken as to the goal.  The
> goal is to promote stability of URLs (and domain names).
> 

This may be your goal but it is not the goal stated in the IAHC draft. 
It is not a goal that I particularly care about because I don't view
this as a significant problem.  As an example, every time I dial a phone
number I don't want to hear a canned voice come back and say "You just
dialed 555-1212, if this is correct, press 1 to complete your call, if
this is incorrect, please hang up and dial again".  Of course, this
would reduce those annoying wrong numbers, but is it really worth it?

> Those who have experience with litigation are aware that for each case that
> goes to litigation, there are dozens of others that somehow reach their
> conclusion prior to litigation.  Generally (after a few cases have been
> decided) the parties manage to resolve their matters taking into account
> how the court would have decided them.  This means that there is always a
> multiplier effect -- for each case that's in the courts, there are dozens
> of others with the same issues at stake.
> 

Dozens of others who may end up never doing anything but consulting an
attorney.  The IAHC does not exist to remove a loss center from your
practice.

> Counting litigations is not the end of the inquiry, and it is a mistake if
> you do that.  Counting litigations is merely the first of several steps in
> assessing the actual size of the problem.
> 

Once again, the stated goal is to reduce litigation.

> And in any event, the number of domain names is indeed a fair measure of
> the size of the problem.  Domain name owners fall into two categories - the
> ones who are are at risk of loss of the domain name and happen to be aware
> of it, and the ones that are at risk of loss of the domain name and happen
> not to be aware of it.  (There is a miniscule third category of domain name
> owners who are not at significant risk, but it is small enough to be
> ignored.)  You are apparently in the second category, and incorrectly think
> you are in the third category.
> 
> It is a rude awakening when you get that nasty letter from NSI, or a nasty
> letter from a trademark owner.  You have evidently not had that awakening.
> 

Companies that will remain solvent(those with leaders who are aware of
what goes on around them), will take precautions.  Other caompanies may
have problems.  This is what is known as a free market and survival of
the fittest.  If a company is in infringing on someone's mark, then they
should be made to stop.  Your 60 day wait is intended as a way to help
infringers keep doing so.  Or at least to provide them a viable defense.

> >[...]
> >> >A) It seems fairly clear that the 60 day wait will not hinder pirates
> >> >at all, and may very well help them -- they wouldn't have to pay for
> >> >the expense of maintaining nameservers, and every hapless trademark
> >> >owner would be scouring the list, and would have to start dealing
> >> >with the pirate immediately.
> >>
> >> "hapless", eh?
> >>
> >> You are, unfortunately, lumping together all pirates.  A more appropriate
> >> analysis would treat two "pirate" categories separately.
> >[...]
> >> The 60-day wait will not help either pirates of category 1 or 2.
> >
> >And they are an insignificant set as well.
> >
> >> Category 3.  Those who register domain names (e.g. clue.com,
> >> perfection.com) that represent words used by many companies, and who are
> >> not, by their conduct, infringing any trademarks.  These parties are not
> >> pirates at all, merely individuals or companies who awoke to the importance
> >> of the Internet sooner than others.
> >
> >Sally used the term "pirates" for these people.  I was followiong her
> >terminology.
> 
> No, she did not.
> 

I think you should probably check the archives again.  Though arguing
over whether or not someone used a particular word seems silly in this
context.

> >> There is no bona fide need for
> >> trademark owners to monitor such parties, during the 60 days or at any
> >> other time, hence they are not "hapless".
> >
> >You miss my point.  The owner of the "clue" trademark will be
> >monitoring the list looking for what you consider to be the real
> >pirates, and they won't be able to distinguish "real" pirates from
> >name brokers.  So they will have to send a letter to the guy who gets
> >"clue.com" regardless, warning him of a possible trademark
> >infringement.  Now that guy comes back and says "Not to worry, I'm
> >just a name broker, and by the way, you can buy clue.com from me for a
> >mere $5000."
> 
> No, here is an area where I am sorry you do not understand the law.  The
> owner of the "clue" trademark will not, in fact, monitor the list at all,
> because (in the future world that follows after the IAHC proposal has been
> followed for some time) it is irrelevant who has domain names containing
> "clue".  The owner of the "clue" trademark will only monitor to see who, on
> their web site, is offering confusingly similar goods or services.  That
> will have little or nothing to do with the 60-day period.
> 

You have either quite an active imagination or a crystal ball.  Perhaps
some pipeline into secret legislative sessions we are not privy to?  I
didn't know the IAHC was writing law.

> >> >D) in my
> >> >experience there are very few indeed who won't find the 60 day period
> >> >a burden.
> >>
> >> Did you also ask these people whether they would mind losing their domain
> >> name after, say, two or three years of investment in it?
> >
> >Presumably if they were worried about that they would have done a
> >trademark search beforehand.
> 
> Sorry, but here is yet another area where it is clear that you do not
> understand the law.  If you pick a word, any word, and do a trademark
> search, you will almost always find one or more trademarks identical to
> that word.  Then (NSI misses this part) you look to see what their goods
> and services are, and what your own goods and services are.  If there is no
> overlap (e.g. fish and bicycles) then you proceed.  The owner of clue.com
> could have done that (indeed, for all I know he did do that) and would have
> found no legal basis to refrain from registering clue.com.
> 
> Perhaps you are under the mistaken impression that the prudent thing is not
> to proceed with a proposed business name (or domain name) if there is *any*
> trademark registration identical to it.  (Anywhere in the world, I guess.)
> In that case, good luck to you.  You could screen thousands of names and
> not be able to proceed, on this approach.
> 

Was clue.com forceably taken away by the courts or was it the NSI
policy?  In any case, it is irrelevant here, because with or without the
60 day wait, clue.com would not have been put on hold by a CORE
registry.

> >Absent NSI's policy they would have
> >almost nothing to worry about if a trademark search comes up clear.  A
> >trademark search takes a few days and costs a couple of hundred
> >dollars -- that is a far more reasonable and understandable "insurance
> >policy" than a 60 day wait.
> 
> Keep in mind that the Internet goes everywhere.  Do you feel that "a couple
> of hundred dollars" will cover a search of all the trademark offices in all
> the places where the Internet goes?  What you propose as "prudent" is in
> fact impossible.
> 

So is expecting a 60 day wait to miraculously change the laws of all the
countries of the world.  A 60 day wait does nothing but slow growth and
restrain trade on the internet.  It is your opinion that it will do
more, but when pressed you offer up no historical references to
substantiate your position.

> ---
> 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

Vince Wolodkin