[re-threaded]
At 08:02 PM 2/11/99 -0500, Martin B. Schwimmer wrote:
>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."
>
>
>
>
>
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Roeland M.J. Meyer -
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