Re: Implications of NSI *Skunkworks* Rul ing, Reply Part 2

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

Andre and all,

  This is my reply (Part 2) To Andre's reply to Duane.  (Comments
below).


> 
> 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.

  The very fact that this is allowed is in direct conflict with U.S. law
along with several other countries Tradmark laws (Germany for instance),
and therefore I would submit to be an illeagle act in and of itself.
I digress....

> 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.

  I agree in principal.  But the exception must be under U.S. law or
any other countries law, or International law.  Any attempt to ucerpt 
these legal systems is a break from both international legal standards,
and not in keeping with harmonious co-habitation of this planet.  If
the international community should accept these principals in detail,
than and only than do they become of substancial worth.  I am not
saying they are not a good BASIS, some are.  This one in particular.
> 
> 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):

This section of paragraph 20 seems very lax in language substance
and meaning; "A pending application for an intellectual property 
right which has been filed in good faith by the domain name holder 
(good faith to be measured, in particular, by the date of the 
application, and the existence of serious and substantial business 
plans in conjunction with which the application has been filed);"

  In particular the wording of "Substancial buisness plans in
conjunction with which the application has been filed", does 
not define what would be considered "Substancial buisness plans"
spicificaly enough to really be understood. 
> 
> -  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;

  Define Widespread please?  This term is too generic for a good 
principal.

> -  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).

  Paragraph 34, seems to favor greatly the challenger or supposed
trademark holder.  It also is contradictory to the first come first
serve doctrine of the domain name holder and what he is doing
with that Domain name.  Many conotations, according to the 
wording of paragraph can be taken here as to what exactly constitutes
damage or impact to the challenger, the Trademark holder that is
claiming
infringment of the Domain name holder.  This is an obvious and
ingregious
problem with this ACP.
 
> 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).

  Why should this even be a consideration under current U.S. law,
many other countries Tradmark law, and international law?  Again
a direct attempt to ucerpt an existing legal system without due
process, and painting that Domain name holder in a light that is
netither legal nor fair.  In addition, what if this Domain Name
holder has not held this Domain Name for 2 years, is he therefore 
disadvantaged?  
> 
> 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.

  This is total nonsense.  This ACP is in stark contrast with 
existing legal systems all over the world, and international 
law, or at least an attempt to ucerpt those laws and paint the
Domain Name holder as secondary to Tradmark intrests which have
fallen behind the technology of th Internet.  (See my comments 
above).
> 
> 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