At 02:20 PM 1/22/99 -0500, you wrote:
>The fact that Mr. Lovell did not have my original post (or more
>importnatly, the series of posts I was responding to) may have led him to
>beleive that we are less in agreement than we are:
>
>I pointed out that in the US, likelihood of confusion naalysis is fleshed
>out. In response to Mueller I add that likelihood of confusion analysis is
>fleshed out in every country that has opposition or cancellation
>proceedings (pretty much every trademark jurisdiction). The law does not
>vary so much from country to country that at the preliminary level, that
>outcomes would drastically vary from jurisdiction to jurisdiction (the fact
>that we are dealing exclusively with word vs. word dipsutes here removes a
>lot of the nuances between jurisdictions).
If it seemed that I thought we were in WIDE disagreement, that was not the
intent. We're at the "down and dirty detail" level, I should think. To show
what one difference may be, and why the internet poses yet another problem
(i.e. other than the one that seems to be understood by almost everyone
except NSI, which is that "confusion" must be determined in the context of
particular goods and/or services that bare domain names do not disclose)
that comes directly from its own nature, I note that in cyberspace one must in
any event be at a word vs. word level, but trademarks don't work that way.
Trademarks are often logos, fancy graphics, etc., that don't fit into a domain
name. Standard trademark law says that for judging the likelihood of
confusion, marks must be compared "as a whole," and one cannot just
pick out specific aspects thereof (e.g., words in isolation) to come to a
proper conclusion. (In a well known Century 21 case in California, the
trial judge went out and looked at the respective lawn signs.)
>
>As for Mr. Lovell's comments on NSI, I have repeatedly stated that NSI's
>dispute resolution proceeding works an injustice because it performs no
>likelihood of confusion analysis. It does not have the expertise to take
>advantage of the developed caselaw - we would not have had a juno.com
>situation if it did.
On this issue one could not fit a single DNA molecule between the
opinion just stated and mine. :-)
I believe that the NSI experience is not an argument
>against alternated dispute resolution, it is an argument against
>incorrectly executed administered dispute resolution - don't force
>registries and registrars to be judges.
Here my view is a bit jaundiced: appellate courts have been busy because
even the District Court Judges were not able to get it right -- I would expect
to see any administered dispute resolution process to bat at a far lower
percentage, unless it were made up of attorneys who specialize in
trademark law (and even then . . . wow . . . 3 attorneys in one room?!!).
>
>As for ICANN not having the experience to administer XDR, I would assume
>that part of is mandate to deal with intellectual propeorty issues in the
>DNS (see the White Paper and the Coop Agreement) would involve making
>arrangements to hire that expertise - maybe it would be arrangements with
>local trademark offices, I don't know - I do not automatically think it
>should be WIPO. One of the ICANN Board members should be someone with
>trademark dispute resolution expertise - soemone like a former head of a
>trademark office.
As I've posted just a bit ago, I really do believe that any "mandate" to
ICANN to
"deal with intellectual property issues" is itself extralegal, to the
extent to which
it presumes to establish "policy," and as to case-by-case decisions, those are
made by attorneys in the Trademark Office and at least the same would be
required in such a scheme.
Having recently acknowledged my rather thin knowledge of the history and
bureacratic structure of the internet, to the extent to which I set out to
expound
on precise structures and the whole "open meeting" bit I should properly be
beaten severely about the head and shoulders; I would expect that those in
this group who have specialized in that area, but are not trademark attorneys,
might at least entertain the notion that technocrats don't know beans about
trademark law -- those such as Prof. Mueller, as an academician, obviously
coming somewhere in between since -- let's face it, if he agrees with me how
wrong could he be?
>I agree with Mr. Lovell that ultimately, if ICANN does not quickly gain the
>confidence of the stakeholders, then the issue of the DNS will be
>ultimately resolved by international treaty.
See? See? This man also knows his stuff!
(Uh, you guys won't pass out over a little humor, I hope.)
>
Bill Lovell
__________________________________________________
To receive the digest version instead, send a
blank email to [EMAIL PROTECTED]
To SUBSCRIBE forward this message to:
[EMAIL PROTECTED]
To UNSUBSCRIBE, forward this message to:
[EMAIL PROTECTED]
Problems/suggestions regarding this list? Email [EMAIL PROTECTED]
___END____________________________________________
