At 08:44 PM 2/16/99 -0800, you wrote:
>> IANAL, but as I understand the rules of jurisprudence and the Code of
>> Ethics for all the state bars, it is a wrongful and penalizable action for
>> an attorney to threaten legal action unless there is a reasonable chance
>> that such action would succeed. This mindset, based on existing law, is
>> what creates the environment in which attorneys feel safe in threatening to
>> sue folks like Veronica.org and ToysRGus.com.
>
>I do not believe there was ever a threat of legal action in the Veronica case
>(and I know nothing about the ToysRGus case) just an invocation of NSI's
flawed
>dispute mechanism, and a domain name that was very nearly shut off.
>
> > There's also the problem with the intent of trademark law (protecting
>one's
>> good name in a given field and/or geographic region) being applied to the
>> Internet's world-wide reach. As I understand the law (ie: as it was
>> explained to me when I asked a trademark attorney) there's no infringement
>> upon a trademark if two identically-named companies operate in the same
>> field but different geographic regions...there's very little chance of
>> confusion (witness the Blue Note domain name last year). However, when one
>> company registers a DN, the other CURRENTLY has the right to sue for
>> trademark infringement.
>
>I don't think it changes their right to SUE, but NSI's policy permits them to
>attempt to get NSI to place the domain on hold without any pending legal
>action, requiring the domain name holder to sue to get his domain name back.
>
>A very bad policy, shifting the burden of proof.
>
As I noted earlier, it is not the burden of proof that is shifted -- the
owner of the
trademark registration must still prove infringement -- but the burden of going
forward with the evidence, i.e., in this case of filing a protective
lawsuit seeking a
Declaratory Judgment of Non-Infringement. It is that burden that stops most
of the "Joes" that one of us was mentioning earlier from being able to retain
their domain names.
Bill Lovell
