At 05:32 PM 3/1/99 -0800, William X. Walsh wrote:
>
>On 02-Mar-99 Einar Stefferud wrote:
>> I think the best move for us to take is to just start using the
>> Trademarking of Private and Prospective TLDs and be done with it. It
>> is a silly thing to try to use qas a hammer to get ICAN to back off.
>> They do not listen to or respond to threats! They react to real live
>> action. And since this nice TM avenue is just sitting there waiting
>> to be used, lets just go for it!
>>
>> Can we use the ORSC staging root so show that TLD names have in fact
>> been put in commerce?
>>
>> Cheers...\Stef
>
>I really don't think it could work. The trademark could be made as only
>applying the naming of hosts within the private networks using those
>nameservers, and it could be argued (quite convincingly) that this would not
>apply outside those networks, since a government sanctioned process is
underway
>to determine the infrastructure for naming of hosts on the generally connected
>internet.
Aside from the fact that there is *really* only one way to find out, the
sanctioned process you mentioned does NOT have the force and substance of
law, trademarks do. You may be convinced, but is it defensible in court?
The sanctioned process you are discussing is an executive branch
machination, we are discussing judicial branch options here. The executive
branch can NOT make new law, only congress can do that, the judiciary
interprets existing law. Whatever bureaucratic regulations ICANN implements
will not carry force of law, they can't. Not only are they under executive
process, they are a private corporation as well. They don't even have the
executive imprimatur. There can not be, and there is no, transfer of power.
The *only* way ICANN can match the USPTO is to become a USG Agency, which
implies Congressional sanction. This runs exactly counter to USG desires to
remove itself from control of the Internet. Ergo, ICANN *has* to conform to
existing law. There is NO WAY a judge is going to let an ICANN policy
over-ride existing trademark law. If nothing else, it will get shot down on
appeal.
However, IANAL applies. All of the preceding is strictly my humble opinion.
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