At 02:02 PM 2/2/99 -0500, Martin B. Schwimmer wrote:
>
>>Trademarks can not be usurped, in law, even if they are not registered.
>This brings me to a point that is a little off topic from this thread, and
>off topic from even the debate regarding dispute resolution in dn/tm
>conflicts.
On the contrary, I believe it to be quite germane.
>So, for example, lots of Europeans can be buying and selling on ebay.com.
>If ebay has not filed for TM protection in Germany, I can go to Germany,
>file for ebay.com covering electronic auction services, get a registration,
>and, theoretically, enjoin ebay.com from doing business in Germany under
>that mark.
There are a number of issues here, some of them technical. It is a fact
that ebay.com, is in the SF Bay Area. Whether trade marked or not, it is
registered in COM. Because of the Internet, it is visible world-wide. Such
an injunction, from Germany, has no standing in California or US courts.
Especially true if ebay.com is registered with USG PTO. Were I ebay.com, I
would simply ignore such an injunction (make them go through the expense of
bringing it into my jurisdiction, where they'd lose). But IANAL so don't
take my advice.
What's Germany going to do, filter at the borders? I don't think so. It is
for certain that I could get PTO registration with records that back-date
to the start of the company, in spite of the German trademark, based on
prior use. I have already done such. What need do I have for a $250US/hr
lawyer to tell me this? It is "black letter" law. [read "Robert J. Ringer"
for a good analysis of lawyers and business, any CEO needs to keep up with
this themselves and not be totally dependent on lawyers, the same holds for
CPA's] Note that NSI's dispute resolution policy acknowledges prior use
because NSI is a US jurisdiction company and has to abide by US law.
The problem, as Vint Cerf has recently highlighted, is that DNS and
trademark law are fundamentally incompatible. One simply can not have
multiple references for the same name, unlike in trademark law, because
geo-political proximity issues, a compromise which much trademark law is
based on, are eliminated by the Internet itself. The only solution possible
is that trademark law can not apply to DNS entries a priori. They must be
adjudicated ad hoc.
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Roeland M.J. Meyer -
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Internet phone: hawk.lvrmr.mhsc.com
Personal web pages: http://staff.mhsc.com/~rmeyer
Company web-site: http://www.mhsc.com
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