Re: How does it work in civil-law countries? (Was something else)

[Vince Wolodkin <wolodkin@digitalink.com>]

Carl Oppedahl wrote:
> 
> At 12:17 PM 01/14/97 -0500, Vince Wolodkin wrote:
> >Carl Oppedahl wrote:
> >>
> >> At 09:34 AM 01/14/97 +0100, Paul Svensson wrote:
> >>
> >> >Could anyone on the IAHC care to comment on what their plans are to
> promote
> >> >this intent in countries that do not base their legal system on case law?
> >>
> >> Could any critic of the IAHC proposal who has offered a concrete
> >> alternative (understanding that such critics are in fact quite rare)
> >> explain how *their* alternative is supposed to work in such countries?
> >
> >Well, many here would like RFC 1591 basically followed and would like
> >the CORE/IAHC etc to just stay out of it.
> 
> Sorry, but we seem to have two definitions of "just stay out of it"
> floating around here.
> 
> By "just stay out of it" we might mean (1) "IAHC and the registry avoid
> deciding who wins in a particular conflict".  Or we might mean (2) "IAHC
> avoids any mention of trademarks in its proposal".
> 

I would change #2 to be "Avoid any policies aimed at influencing legal
decisions especially in the area of trademark law".  Or something very
much like that.  The draft should recognize that tradeamrk disputes
exist and establish that it will not get involved as it is only
publishing the claims of the domain holder.  The CORE should not wish to
impose punitive measures against 99.9 percent of the net.

> Under definition (1), it seems you have no gripe with IAHC's present
> proposal.  It does not decide who wins in a particular conflict.  Of
> course, if RFC 1591 were followed, that would also satisfy definition (1).
> Definition (1) is important, for example because of NSI's blunder in
> implementing its second, third, and fourth policies, in each of which it
> decides who wins.
> 

Correct.

> Under definition (2), well, that is just plain silly.  IAHC ought to say
> what thinks about trademarks, even if all it says is that decisions about
> trademarks will be left to the courts (which is true of the present IAHC
> proposal and is true of RFC 1591).
> 

Wrong, IAHC should NOT say what it thinks about trademarks.  What it
thinks is unimportant and irrelevant.  What is important to put across
is that CORE is a publisher of claims to namespace and as such will
abide court decisions as to rightful ownership of claimed namespace.

> Returning to the the question as presented, the question was, can a
> proponent of RFC 1591 how RFC 1591 is supposed to work in civil-law countries?
> 

I didn't actually ask that, I answered by saying that it is unimportant
if you use my definition of #2.

> (notable silence)
> 
> The plain fact is, there are 180 or so court systems in the world, each
> with its own rules and ways of deciding cases.  I made clear back in August
> of 1996 what I recommend for the Internet and for trademark domain name
> issues, and anyone who wishes to read it may do so at
> <http://www.patents.com/nsi.sht>.  My position paper has been there for
> four months now, something like that -- longer than the IAHC proposal,
> longer than the INTA proposal.  Basically I favored RFC 1591.  But I can't
> predict, better than anyone else can, how Botswana is going to decide cases
> if RFC 1591 applies.  Does that mean it is stupid or unrealistic to propose
> RFC 1591?  Of course not.  Is it grounds for rejecting any talk of applying
> RFC 1591, because we don't know exactly how it will be followed in all 180
> countries?  Of course not.
> 
> Returning to the IAHC proposal, I will be the first to admit I don't know
> exactly how Botswana's courts would decide a domain name case if the IAHC
> proposal were in effect.  Does that mean it is stupid or unrealistic to
> propose the IAHC proposal?  Of course not.  Is it grounds for rejecting any
> talk of following the IAHC proposal, because we don't know exactly how it
> will be followed in all 180 countries?  Of course not.
> 
> Yet that's exactly what we are seeing here.  People are attacking the IAHC
> proposal because most of its proponents are from common-law countries, and
> the world contains many civil-law countries.  One commenter, criticizing my
> writings, challenged me to travel to all the courts of the world and bring
> back declarations regarding how the IAHC proposal would affect decisions in
> each of those courts.  My failure to do so would apparently count as a
> reason to reject the IAHC proposal or any and all parts of it.
> 
> Ridiculous.  The IAHC proposal would, in fact, be a meaningful influence on
> the deliberations of the courts of all countries.  This is especially so
> given that the International Trademark Association has also commented on
> the subject, and along the same lines.  I know this, and I don't belong to
> INTA.  Experienced lawyers would say the same thing.
> 
> >So, if they just stayed out
> >of it then they would have to....oh wait, I guess they WOULDN'T HAVE TO
> >DO ANYTHING, would they.  You don't have to have a complicated policy if
> >you STAY OUT OF IT.  You don't have to worry about how courts will
> >handle anything in different countries if you STAY OUT OF IT.
> 
> Again see the comments above about the two or more meanings of "stay out of
> it".  Under RFC 1591, or under the IAHC proposal, in either case they are
> "staying out of it".
> 

I disagree, by implementing a 60 day waiting period they have clearly
taken action in regards to trademark issues.  This is clearly NOT
staying out of it.

> >So, Carl, I think you are sidestepping the issue here.  If you stay out
> >of it you don't need to worry about all of this.  You see in the
> >alternative where you stay out of it, you don't care about how it
> >works.  As your own document indicates, you just do what the court tells
> >you.
> 
> Under RFC 1591, or under the IAHC proposal, the registration authority will
> "just do what the court tells [it]".  The distinction you purport to draw
> is, so far as I can see, illusory.

Really, in so far as I can see, we all must have eaten the same
mushrooms, because quite a lot of us are sharing the same illusion.  It
seems like only trademark lawyers and a few IAHC members are in support
of the 60 day wait.  Am I hallucinating, because I surely see the 60 day
wait as a pre-meditated action in support of domain holders trademark
rights.  It is kind of an ANTI-NSI policy.  NSI favors the mark holder
and this policy attempts to favor the domain holder.

I would REALLY like to see some input from some IAHC members on this. 
Don Heath, if you are out there, someone should be speaking up soon. 
Failure of the IAHC to speak to this issue which has had massive protest
from a large group of people leaves me wondering.  I see the same few
IAHC members speaking all the time.  I wonder if the other members even
bother to read their mail.

Vince Wolodkin