At 10:56 PM 4/1/99 -0500, Dan Steinberg wrote:
>
>
>"Roeland M.J. Meyer" wrote:
>>
>> At 08:14 PM 4/1/99 -0500, Dan Steinberg wrote:
>> >Notsofast...
>> >
>> >Before we (or anyone else) can cede famous names, we need an
>> >appropriate international definition of 'famous names'. Right now
>> >most of the world uses 'well known marks' in the trademark arena, and
>> >that's as good as it gets. Remember, that's just the trademark
>> >arena. Outside of trademark law, I defy anyone to come up with an
>> >internationally acceptable definition of 'famous names' (other than "I
>> >know one when I see one").
>>
>> I was thinking similarly. How about we make them present proof of
>> trademark, or provide statements affirming their common-law mark.
>
>Um, Roeland...
>Trademark in which country?
US of course. ORSC is a DE corp is it not? ICANN legal jurisdiction is
California. Both in the US, this makes legal issues very convenient.
>The whole point I was trying to make is that we can't apply these
>rules across national boundaries. Plenty of entities have valid
>trademarks on the same character string in the same country. Now take
>it across national boundaries. This just doesn't scale.
Well, I recognize the issue. Martin and I have debated it, at length.
Competent jurisdiction is relevant only between opponents. In this case the
issue is control over whether anyone else gets to assign a
trustee/owner/whatever to a TLD that we've assigned. There are only two
possible current contenders for this scenario, both are in the US. Being
able to interdict via US law, would be sufficient for now. ORSC is a
Delaware corp. There are a lot of nice benefits to DE law. The other two
are in CA and VA. In this case, USG PTO rules will prevail, in the US, and
via existing treaty, elsewhere in the world. Granted, it would be a bit
more difficult, but only slightly, to enforce a foreign trademark with
ICANN or NSI. We already know that NSI is a trademark push-over, we won't
even have to go to court there. ICANN may be more difficult, but it looks
as if they are willing to hand-cuff themselves (with WIPO) before they even
get started.
I am proposing using the very thing we've all been debating, trademark law,
to enforce the existence of new TLDs, in the ORSC roots. What's better is
that *we* won't have to do a thing, it is the TLD-holder's job to enforce
their own rights. We just get to sit back and watch. We'll have done our
due diligence by requesting their trademark information and having it on
file. That should stave off any summary TRO brought against the registry
itself. We can then demand any challenger to submit a judgement, against
the current TLD-holder, before we do anything.
>> I've always appreciated NSI's delicate position, although their policy sux
>> eggs.
>>
>> >Sorry to be a wet blanket, but just because I think .att is associated
>> >with a certain firm doesn't mean everyone in the world does (actually
>> >I would first think of .at&t before I thought of .att but that's
>> >another story).
>> >
>> >The point being that it will 'fairly' difficult to make such
>> >allocations. why should ford motor company get .ford instead of the
>> >ford agency? Give male teens the choice between supermodels and super
>> >trucks, I wouldnt want to bet on the outcome. And I am sure that
>> >somewhere in the world. the alpha string 'ibm' is strongly associated
>> >with something other than a certain company with headquarters in the
>> >state of New York. Etc. etc.
>>
>> >I like Christopher Ambler's suggestion. Nothing is automatic. If
>> >someone who happens to have a US Famous Mark wants to run a TLD, it is
>> >possible but not guaranteed. There still has to be a process.
>>
>> Agreed, with a modification. They should sign a hold-harmless. Actually,
>> this brings up another point related to the SLA and that is the contract
>> binding the TLD owner and the organization. Granted, we need to agree on
>> the service levels first, but they should be formalized shortly thereafter.
>>
>> I have boiler-plate, that I used for the MHSC Terms Of Service
>> <http://www.mhsc.com/legal.dox/TOS_txt.html>, but I am sure Dan has better,
>> or can better modify it for ORSC use.<grin> (BTW, I stole the plate from
>> AOL). Since ORSC is a DE corp, it would be prudent to claim DE jurisdiction.
>
>And the law of which nation should apply?????
>Sorry, doesn't scale either.
I think I mentioned Delaware State Law? This is in the US.
>There's a few dozen problems to solve before we (or anyone else) gets
>to defining SLAs.
Yes, I agree.
___________________________________________________
Roeland M.J. Meyer -
e-mail: mailto:[EMAIL PROTECTED]
Internet phone: hawk.lvrmr.mhsc.com
Personal web pages: http://staff.mhsc.com/~rmeyer
Company web-site: http://www.mhsc.com
___________________________________________________
Lead, follow, get out of the way .... pick one!
