At 07:38 PM 4/14/99 -0700, you wrote:
>On Wed, Apr 14, 1999 at 06:35:54PM -0700, Bill Lovell wrote:
[snip]
>I don't believe that anyone has claimed to change anything about US
>TM law.
Pertinent questions below, and I believe they all have the same answer,
which centers around the ability of parties to use contract law to
circumvent existing law, namely, that which now establishes what the
respective rights under the Lanham act are as to trademark registrants
and domain name registrants. Contract provisions that purport to change
existing rights, or more particularly the operations of law that establish
those rights, and especially those with a long history such as trademarks,
are routinely struck down by courts as being contrary to public policy.
I would suspect that any contract provisions that purported to set up
some other entity than the courts to be an adjudicator of rights that now
exist under the statutes, the common law, and the Constitution would
eagerly be struck down by any court. What your hypothetical below
sets out is a provision, assuming for the sake of argument that songbird
was the only route onto the internet that I had, requiring me to abandon
certain of my fundamental rights in order to become a participant in the
marvelous new world of the internet. That in itself would be contrary not
only to public policy as exists under U. S. law, but it would act in true
and certain circumvention of the "free and open, democratic, swingin',
chutzpah internet" that is piously touted as the ideal goal in this great
new electronic world. To require abandonment of fundamental rights in
order to be let onto the playing field, I would think, would be the last
and least game plan that, if their preachings are to be believed, would
be espoused by many of the participants in the IFWP, and especially
including the DNRC which purports to sit on the other side of that
fence.
Why hasn't the above been done? Because no one has raised, or has
had the opportunity to raise, those issues within the right context in a
Federal Court.
Bill Lovell
>
>Question 1:
>
>Given that I control the songbird.com domain, I am able to register
>subdomains in that domain. It's dimly conceivable that through
>heroic marketing, registrations in songbird.com could become wildly
>popular, and I could charge for the service. For example, you could
>pay your $35 or whatever to me, and register lovell.songbird.com.
>Of course, I would require you to sign a registration agreement, a
>*private contract* between you and Songbird.
>
>Suppose in that registration agreement I put a clause that says that
>if it turns out that the name you register is not a trademark of
>yours, but is an identical string match with some trademark of some
>other party, then you must give up your registration to that other
>trademark holder, if that trademark holder wishes to be registered in
>the songbird.com domain...
>
>How would that contract break or contradict trademark law? How
>would it "change one comma thereof"?
>
>Question 2: Suppose instead of the above mentioned provision, I
>specified in the registration agreement that you must follow the
>guidelines set up by WIPO, and submit to binding arbitration if the
>need arose. How would this new registration agreement break TM law?
>What provisions of the Lanham act are contradicted?
>
>Question 3: Presuming that this *private contract* between you and me
>does not contradict trademark law, how is it that applying the WIPO
>provisions to a registration agreement for .com would change anything
>about the Lanham act? What, precisely, are the provisions of the
>Lanham act that apply?
>
>--
>Kent Crispin "Do good, and you'll be
>[EMAIL PROTECTED] lonesome." -- Mark Twain
