At 01:38 AM 2/10/99 -0800, you wrote:
>At 07:24 PM 2/9/99 -0800, Bill Lovell wrote:
>
>>Like I said before, quit legislating chimera: put all the companies into
>>the internet yellow pages and forget it. NONE OF THIS IS IN THE
>>HANDS OF IFWP, MAC, CHEESE, SPAGHETTI, OR WHATEVER
>>ALPHABET YOU WANT.
>
>Bill, this is not helping consensus.
Roeland: I agree with that. It does not help consensus because whatever
"consensus" is reached here won't make any difference anyway. It is the
courts that will be deciding what comes out of the TM - DN conflict. That
is what I am trying to say.
Folks are disagreeing exactly on these
>issues. They are becoming a show-stopper. Unless we discuss them openly, we
>seem to be stuck.
What I suggest is that what be discussed openly is not some scheme
conceived as though there were not long history of trademark law, but
instead an attempt to project where we think trademark law will go and
then use the undoubted technical expertise of this group to structure
TLDs and such in a way as to best serve the users of the net in light of
that law. Just as we say that ICANN is supposed to be doing technical
things and staying out of policy, so should this group (rather more
technically proficient than ICANN, I should say), be directing its energies
within areas of its competence. Neither ICANN nor this group has any
jurisdiction over U. S. trademark law, let alone international law. We are
not a legislature.
A few folks, around the lists, can testify exactly what
>my public views are. That I am willing to set those aside and dicker to a
>compromise should indicated my view of the importance of this issue.
I'd never for a minute ask anyone to set aside their personal views, and
if anything in what I wrote suggests otherwise, 'tweren't meant!
>
>>Thank God we have laws in this country.
>
>Which country *is* that? Therein lays the problem.
The U.S., in this case. But the point is, for example, that under U. S.
law it is necessary that a likelihood of confusion be shown before an
owner of a registered trademark can prevail against a domain name
holder. Nothing that ICANN, WIPO, this group, or any other entity
can do will change that. None of the charters and soforth that have
been given to ICANN, NSI or whoever purport to repeal any part of
the Lanham Act, for the simple reason that the Dept. of Commerce
lacks the authority to do that. So what I'm saying is that this group,
likewise, has no authority to make any such changes, dream up
new schemes, etc., etc., and its time would be better spent on
those technical and business areas in which it indeed can make
a significant contribution.
Is there a problem with respect to the fact that different countries
have different trademark laws? Of course there is, but that kind of
problem is solved through treaties such as GATT, NAFTA and the
like, not by groups such as this who don't have authority over the
subject. And that is not to say that this group should not be
expounding its views about what any such agreement ought to be
-- good, solid exposition of what is technically possible, and what
legal structure might fit those possibilities, is essential, and this
is the place, among others, to lay all that out. But to speak of
this group reaching any "consensus" and then pretending that a
new world order has just been realized -- it is a "done deal" -- is
to my mind just plain silly.
The ideas that I have advanced have been, among others, to
(a) use the time-honored Swedish concept of the Ombudsman
to look after the average citizen's rights; (b) take the whole
trademark issue out of the picture by letting people who want
to find company X go to the yellow pages as occurs in the
real world, and so on. The point is, to concentrate on things
that CAN be done in the context of existing trademark law.
Bill Lovell
