A However, there have been no other studies brought forth that
>refute that the large majority of trademark v. domain name interests are
>NOT infringment cases, and are NOT "cybersquatting" cases.
There is no reliable study at all which shows that the majority of tm/dn
disputes (presumably NSI disputes) are or are not. NSI's requirement of
strict identity of the TM reg to the SLD actually removes a lot of "true"
infringment or dilution cases.
>
>My own personal experience of 3 to 4 requests for help per week by
>telephone and/or email yields at least 2 where trademark holders are
>attempting to reverse hijack the domain name.
Fine, you're a defendant's lawyer, I'mm a plaintiff's lawyer. My personal
experience is precisely the opposite of yours. My firm gets an average of
3 or 4 true examples of piracy a week.
And no client of mine has ever "reverse-highjacked" a DN because they
listen to me when I tell them that to do so opens them up to a potential
declaratory judgment action and/or a cause of action for tortious
interference with contract (or prospective advantage) or other torts.
Yet the issue of reverse
>hijacking is not addressed by any WIPO study, or by anything I've seen from
>INTA (despite INTA's claim that it "speaks for all domain name holders").
INTA never claimed to speak for all domain holders, although its membership
probably makes it the largest organziation of domain name holders. Einar
forwarded to me for comment your misinterpretation of an INTA bulletin that
is the subject of your misinterpretation. I assumed he had forwarded to
you my response. In any event, INTA did not make the statement you ascribe
to it - the statement was that INTA had in its membership many DN owners
and that INTA speaks in one voice for its membership - which is the type of
hyperbole you might expect in an internal trade organization newsletter.
As for WIPO, the report does point out that the NSI process grants in
effect a preliminary injunction to those who might not be entitled to one.
It could have spoken more forcefully on reverse-highjacking, I grant you,
but it also focuses more instead on creating an ADR that doesn't create the
potential for reverse highjacking.
p.s. If you continually state that WIPO is biased in favor of intellectual
property rather than making the case that a domain name is a form of
intellectual property (or rather is a vessel for intellectual property),
than do not be shocked when they do not invite you to tea.
>The most recent call for help came from the holder of "pseudo.org." She is
>allowing me to reveal that information to the public. Pseudo is a common
>word used by the domain name holder for her personal calendar, yet the
>trademark holder is claiming infringement and dilution regardless of the
>non commercial nature of the site.
>
>Cases of dilution, infringement, and "cybersquatting" are won by the
>trademark holder.
Cses of declarations of non-infrignment are won by the non-infringer.
Thus, there is no need for "extra-legal" special
>privilege for trademark holders.
Then there is no need to change NSI policy, because all the safeguards
against reverse-highjacking are in place (irony emoticon - I don't really
mean that).
So even regardless of the
>personal/professional attacks on Milton Mueller and his study, there is
>still no evidencce that greater rights be given to trademark holders on the
>Internet than they receive in any other media.
I could respond that every victim of reverse high-jacking has the
pre-existing remedy of going into court and bringing a declaratory judgment
of non-infringment - also tortious interference with contract, abuse of
process (perhaps), prima facie tort. The arguments why a DJ action is
insufficient are the same reasons why they are insufficient for small TM
owners (or large TM owners faced with fifty or so domain name problems).
It is too easy to violate the TM or DN owner's rights, and civil litigation
is an impractical solution for any entity, especially those faced with
multiple vilations atthe same time.
Litigation is to be avoided when you can create procedures which prevent or
alleviate conflict.
A small DN owner started the thread "Who is in need of TM protection" when
she said that she could have been aided by ADR - she could have used a less
onerous and expensive forum to establish that her's was a non-infringing use.
She's right.
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