Re: Implications of NSI *Skunkworks* Rul ing

[Jeff Williams <jwkckid1@ix.netcom.com>]

Andre and all,

Andre Marcel wrote:
> 
> Duane Little wrote :
> >Under the MoU, the mere registration of a name is clearly
> >regarded as the virtual equivalent of a de facto infringement.
> 
> While we understand the concern that this might be the case, in
> fact nothing could be farther from the truth.

  First, I am not sure that Duane stated this quite like he 
intended to, so it may be misunderstood.  Or I am drawing a 
understanding that was not intended.  I am sure that Duane
will correct me if I am incorrect.  

  I believe his meaning, was more along the lines that the
first come first serve principal is ucerped later in the
Acp that you refrence below unnecessarly and makes understanding
of the DOmain name holder, especially a NEW registration, very
dificult, not to mention that Trademark Law is not up to snuff
with internet developments and therefore is attempting to use their
cicious legal abilities as a method to invoke spicific rights that
are yet to be defined spicificaly within Trademark Law on the whole
both in the U.S. and internationaly.

* Note:  I will comment in detail further on the rest of this posting
* later.
*====================================================================
> 
> We would recommend that anyone interested in this topic review
> the background material contained in the Policy Oversight
> Committee (POC) Request for Comments (RFC) Notice-97-03, at
> http://www.gtld-mou.org/docs/notice-97-03.html, as well as the
> text of the [Second Revised] Draft Substantive Guidelines
> Concerning Administrative Challenge Panels (ACPs) under the
> gTLD-MoU, at http://www.gtld-mou.org/docs/sracps.htm.  The
> RFC period for comments on this draft has been extended to
> December 5, 1997.
> 
> The draft substantive guidelines require in every case a balancing
> between the rights and interests of the domain name holder, and
> the rights of the intellectual property (trademark) owner who filed
> the challenge.  Under the guidelines, the first-come first-served
> principle is stated as the basic rule for the right to hold and use a
> domain name in the gTLDs (see paragraph 10).  Cancellation of
> the domain name because of conflict with an intellectual property
> right is an exception to that principle, and there must be sufficient
> justification for doing so.
> 
> Accordingly, the rights and interests of the domain name holder will
> be broadly taken into account when the domain name is
> challenged by a trademark owner. The rights and interests that
> must be taken into account by an ACP include the following,
> among others (see paragraph 20 of the substantive guidelines):
> 
> -  good faith use of the domain name by the domain name holder
> on the Internet;
> -  evidence of widespread public recognition of the domain name
> holder's use of the domain name on the Internet;
> -  any prior rights that the domain name holder may have
> concerning the domain name;
> -  use of the domain name holder's personal name or nickname as
> a second-level domain name in a gTLD which is dedicated to
> personal names;
> -  any other right to continue use of the domain name.
> 
> An ACP must also take into account, among other things, the type
> of use that is being made of the domain name on the Internet, the
> impact of the use of the domain name by the domain name holder
> on the challenger's business, and the impact that cancellation of
> the domain name would have on the domain name holder's
> customers (paragraph 34).  A finding by the ACP that the domain
> name has been used by the domain name holder continuously and
> in good faith on the Internet for two years is considered a
> rebuttable presumption that the domain name holder is entitled to
> continue that use of the domain name (paragraph 21).
> 
> The substantive guidelines for ACPs have been drafted, and
> revised, in an almost year-long open and public process involving
> the participation of domain name owners and Internet associations,
> as well as trademark owners, trademark associations, and national
> governments.  They strive to achieve a balance between the
> needs and interests of users of the Internet, and those of
> trademark owners and other intellectual property right holders
> (themselves Internet users and domain name holders), to create
> stability in the global commercial and communications environment
> that the Internet has become.
> 
> Andre Marcel
> Consultant, WIPO
> speaking on my own behalf
> <andre.marcel@wipo.int>

Regards,
-- 
Jeffrey A. Williams
DIR. Internet Network Eng/SR. Java Development Eng.
Information Eng. Group. IEG. INC. (Soon to be INEG. INC) Stay tunned! 
Phone :913-294-2375 (v-office)
E-Mail jwkckid1@ix.netcom.com

Wisdom:   "One who knows others is wise,
           one who knows himself is enlightened."
           Lao Tzu