At 09:32 AM 2/17/99 , Martin B. Schwimmer wrote:
>At 10:19 AM 2/17/99 -0500, you wrote:
>>Carl Oppedahl wrote:
>>
>>>>What is the domain name holders burden in a filing like that?
>>>
>>>Typically a few tens of thousands of dollars.
>>
>>Which is exactly why pseudo.org may lose their domain name. The
>>non-infringing non-commercial domain name holder can't afford tens of
>>thousands of dollars. The reverse domain name hijackers have very little
>>downside. All they need do is claim infringement (even though there is NO
>>analysis in the US that supports the claim, and they know it) and he domain
>>name holder's only recourse is to spend tens of thousands in legal fees
>>that generally aren't shifted back to the reverse hijacker in court.
>
>As has been stated several times on this list, this analysis is simply
>inaccurate. It ignores the Declaratory Judgment Act, Rule 11 sanctions,
>the existence of legal aid, and the ability to represent onself (pro se).
Sorry, but from what you wrote it seems that you might not be speaking from
actual experience in this area. If you had been consulted (as I have, and
as others have) by many dozens of innocent domain name owners who have
received NSI 30-day letters, you would know the situation.
First, initiating an NSI challenge, even if one has no colorable claim, is
easy to do (it takes 66 cents postage and little else). Can you point to
even a single instance in which a domain name owner who is the victim of a
bogus NSI claim has recovered his or her costs through the filing of a DJ
action? No, I didn't think so.
Second, if the innocent domain name owner brings a DJ action to kill the
NSI cutoff plans, the usual next event is that the covetous party who
brought the NSI challenge settles the matter without ever signing any court
papers. If you reread Rule 11 carefully, you will find that if one never
signs a court paper, one faces no risk of Rule 11 sanctions.
Can you point to even a single instance of a domain name owner having been
defended in court *or* in an NSI challenge by means of legal aid? No, I
didn't think so.
Can you point to even a single instance of a domain name owner successfully
countering an NSI challenge by filing a DJ action pro se? No, I didn't
think so.
>As long as we are minimizing legitimate beefs by measuring them against the
>entire population, will Ms. Barry and Mr. Oppedahl please identify the
>number of cases which fit the following:
>
>An infringement claim brought under Section 32 of the Lanham Act against
>the owner of a domain name where plaintiff had no colorable claim.
You seem to have missed something. In cases where the covetous party has
no colorable claim, they generally don't present it the claim in regular
court, for the simple reason that they know they would lose there. (Maybe
also the decision is influenced by the risk of Rule 11 sanctions that you
mentioned, but as you may or may not know, Rule 11 sanctions are almost
never granted. There are judges who have gone their entire careers without
imposing Rule 11 sanctions, and in fact I suspect most judges are in this
category.) Instead, they present it in NSI's self-appointed court, where
NSI will rule in their favor regardless of the claim lacking any legal merit.
I have personally seen many, many dozens of cases in which covetous parties
brought meritless claims in NSI's "court" and in which NSI ruled in their
favor, announcing that it had determined to take the domain name away from
its owner.
