At 05:26 PM 1/22/99 , Bill Lovell wrote:
>At 06:23 PM 1/22/99 -0500, you wrote:
>>The issue that Schwimmer raises is whether an administrative law system
>>would be
>>fairer than the NSI law. Theoretically, it could hardly be worse,
especially
>>if a
>>"use in commerce," "likelihood of confusion" and "dilution" analysis was
>>actually
>>performed.
>
>My point was that insofar as the U. S. is concerned, an administrative
>law system already exists in the US Patent and Trademark Office. I
>hope that you, too, refer to "NSI law" with tongue in cheek -- NSI does
>not have and has never had the right to establish law on trademark
>related issues.
One unhappy consequence of NSI's ill-conceived policymaking is that it has,
in fact, greatly influenced the behavior of lawyers and trademark owners.
I have reviewed many dozens of cease-and-desist letters sent by trademark
owners to domain name owners, and many of them contain language along the
lines of:
under the NSI policy, we are entitled to the xxx.com
domain name, due to our trademark registration. We
demand that you sign the enclosed document transferring
the xxx.com domain name to us within ten days, in the
absence of which we will have no choice but to invoke
the NSI dispute procedure and other legal remedies.
If NSI had never enacted its July 1995 policy (the one that repudiated RFC
1591), which says that the only analysis required is to check to see if the
domain name and the trademark contain the same letters, then trademark
owners would never have been sucked into thinking that mere text
identicality somehow gives rise to trademark infringement.
By fashioning and enacting its policy, and by stubbornly refusing to drop
it even after criticism from all sides (including the International
Trademark Association!), NSI has indeed "made law", or at least you would
think so to read these cease-and-desist letters.
Many, many innocent domain name owners who didn't have enough money to go
to court in response to an NSI cutoff decision have seen their businesses
ruined by the NSI cutoff. It would be possible to quibble and say that NSI
didn't make "law", but on a practical level it has certainly taken upon
itself a role traditionally limited to legislatures, making law.
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