A>
>This case also provides a splendid example of how the WIPO process could
>muck things up. Consider-
>
>a) There is no assurance whatsoever that the WIPO process would have engaged
>in an identical analysis.
This is a chauvinist argument - US law is the best on this point so let's
not decide this fact pattern under any other analysis. Of course under US
law, jewsforjesus.org is infringing. And what do the non-US folk say about
this?
>
>b) The WIPO process would add a layer of expense to the process easily
>borne by the TM holder but burdensome to the name holder.
>
This is fake populism. ADR is a less expensive form of dispute resolution
than civil litigation. DN holders who compain how much a declaratory
judgment costs might like the option of an ADR process.
>c) If the TM holder lost before WIPO, it remained in the identical position
>as before the WIPO adjudication (and apparently need not pay the nameholder's
>costs) and may now file in court.
It is not in the same position because having won an administrative
proceeding, the DN's ownership will not be suspended during the pendency of
the civil proceeding.
>
>d) By contrast, if the TM holder won, the nameholder would be shut out
>from its site and forced to sue to regain the name.
But the TM owner would only win if it shows that it is likely to win after
at a final resolution. That is the nature of preliminary relief - the
person with the best case affects the dispostion of the status quo.
Incidentally, arguments (c) and (d) are simply arguments against appellate
review. Yeah, there is a status quo which does or does not get changed at
any level of the judicial process.
>
>e) The court's analysis would be clouded by the need to interpret the WIPO
adjudication.
Show me an adminsitrative law tribunal whose decisions are not subject to
appellate review. The court's analysis would not be "clouded" (whatever
that means) by the lower tribunal's decision.
>
>f) Valuable and publicized precedent would be lost.
Yeah, but if it meant getting rid of the jewsforjesus.org precedent, you
would be for it. In any event, the national civil courts will be superior
to any administrative tribunal below it. So no valuable and publicized
(publicized?) precedent would be "lost."
