Chuck Gomes <[EMAIL PROTECTED] (cgomes)> wrote on 2/2/99 8:13 AM:
>>"Another observation might be that the much maligned and
disliked NSI dispute policy might actually discourage
cybersqatters from going after trademarked names because
they know the mark holders can invoke the policy. If this
is true, it could possibly be concluded that cybersquatters
are focusing more on non-trademarked names."
Like a policy that says that "all tall people accused of thievery are
punished while all short people accused of thievery are set free," the
NSI domain dispute policy certainly works *some* of the time.
The policy is not "maligned" (which indicates you believe the policy
is *unfairly* criticized) because it does not work part of the time.
Of course it works *some* of the time. Rather, the dispute policy is
criticized by lawyers and non-lawyers alike because it is both
overinclusive and underinclusive.
The NSI policy is overinclusive because domain names are taken from
domain name owners when a real court would refuse to pull them, as in
the reverse hijacking cases. It's like convicting all tall people of
thievery regardless of whether they are actually innocent or guilty.
The NSI policy is underinclusive in cases where a court would pull a
domain name, but NSI refuses to. Examples of this are cases in which
the domain name owner has chosen a domain that is a "complement" to a
trademark (e.g., "p0rsche.com") or a misspelling of a trademark (e.g.,
"prosche.com"). It's like releasing all short people accused of
thievery regardless of whether they are actually innocent or guilty.
In the meantime, tall people wrongly accused of thievery will go to jail, while
short people correctly accused of thievery will be set free.
Of course, the tall people wrongly accused of thievery can always appeal to a
higher court, just as domain name owners who have had their domain names
wrongfully pulled can file suit in court. But that takes money, which some
wrongfully accused people don't have.
Moral: An unfair policy, rule or law remains unfair, even when it fulfills its
stated purpose *part* of the time.
>From my perspective, I've defended domain name owners wrongfully caught up in
NSI's domain dispute policy. I've also advised trademark owners, who have
bypassed NSI's domain dispute policy as not helpful getting domain names away
from cybersquatters whose domain names are confusingly-similar but not exactly
the same as the trademarks in question.
I've said all along that the fairest thing NSI can do with the domain dispute
policy is to dump it. NSI should either (1) not replace the domain policy, and
let existing legal approaches apply, or (2) refer all such disputes between NSI
registrants to binding arbitration on a fast track basis, with the arbitration
to be conducted online, or in the geographic location where the domain name
owner is based.
For the record, I'll also repeat that my comments are meant as a criticism of
NSI's policy (and by extension those employees and officers who actually *make*
policy for NSI). My comments are not meant as a criticism of those NSI
employees who carry out the policy. I have consisently found NSI's employees to
be professional.
--Fred
Frederic M. Wilf
Intellectual Property & Technology Law
Email [EMAIL PROTECTED]; URL http://www.saul.com/laywers/5082.html
Saul Ewing Remick & Saul, 1055 Westlakes Drive, Berwyn, PA 19312, U.S.A.
