Um, here again I evidently didn't hit the IFPW list on my initial transmission. Bill Lovell >Date: Fri, 12 Feb 1999 14:33:40 -0800 >To: John Charles Broomfield <[EMAIL PROTECTED]> >From: Bill Lovell <[EMAIL PROTECTED]> >Subject: Re: Trademarks vs DNS -Reply -Reply > >At 05:47 PM 2/12/99 -0400, you wrote: > >>As far as arbitration goes it's just a man with a silly wig and robes >>(maybe without the fancy dress) deciding who is right. With the courts, it's >>just another man with a silly wig and robes deciding who is right. What does >>one man have over the other? > >WIPO Arbitration: No source of authority whatever that I can find > No evidence of any expertise in trademark law > No body of case law available > >A U. S. Court: Article 3, other statutory authority > Long history of rendering trademark decisions > Extensive case law available > >If one were to postulate that the arbitration "judge" would in fact use >prior national case law, there still remains no evidence that such a >"judge" would have the legal expertise to do so. An ICANN arbitration >would of course suffer from the same defects as would a WIPO >arbitration. > >I might add that in an actual infringement case, the finder of fact might >not be the man (or woman) in the silly robes; it might be a jury. > >I might also add that there does exist mandatory mediation (NOT >arbitration) in the U. S. Federal Court system: a judge will mediate -- >in my case to no avail -- which is a very frustrating experience to >the judge because he/she is in an odd role, not being able to issue >orders. > >And of course, in a different country than the U. S., that country's >courts would be used. The relevant case law in Country A may be >quite different from that in Country B (although I must say that the >U. S. and the U.K. seem to be tracking each other quite well), so >there is a substantial possibility that the relevant law would not be >uniform across the Internet. > >The answer to all this, again, would seem to be international >harmonization of trademark law through treaty, and perhaps the >institution of an international Internet court to decide such matters, >perhaps as an appellate court in case the parties in a national >court were dissatisfied. Even in the national courts, there are >problems of jurisdiction (many current domain name cases have >had to fight out whether or not the court in U. S. state A has >personal jurisdiction over a party that resides in state B) and >venue (even with jurisdiction, where is the thing to be tried?). > >Bill Lovell
