Re: [discuss] Notes - Names Council Meeting, San Jose - 062599

[Kent Crispin <kent@songbird.com>]

On Tue, Jun 29, 1999 at 12:52:08AM +0000, William X. Walsh wrote:
> On Mon, 28 Jun 1999 17:40:56 -0700, Kent Crispin <kent@songbird.com>
> wrote:
> 
> >Furthermore, the WIPO report, last time I looked, explicitly stated
> >that its recommendations don't supersede local law, and that a
> >complainant would always have the option of taking their case to
> >court. 
> 
> Thats the rubbing point!
> 
> The shift of the burden to prove a case in court has been shifted from
> the Trademark holder to the domain holder.

The one who has the burden of taking the case to court is the one
who loses the DR process.  That is not a priori the domain holder. 

> They then, in effect, have to carry the burden of filing a court case
> and proving that indeed they did not violate the trademark.

Only if they lost the DRP, *and* the DRP gave a significantly 
different result than they would have gotten in a direct court 
fight.  [There would be no point in taking a clearly losing case to 
court.] 

I notice that the DNRC has posted a press release protesting the 
cybersquatting bill.  That points out that it is quite possible that 
the WIPO recommendations could be *better* for the domain holder 
than any particular countries laws.
[...]

> >Aside from the fact that I don't think there is any such thing in the 
> >WIPO report, which standards of proof are you talking about?
> 
> Standards of proof under the law.  Hard to pinpoint what those are,
> isn't it?  That is exactly why Manadatory Arbitration is not
> acceptable.

Non sequitor.

> There is no need to MANDATE arbitration, except to benefit the
> Trademark holder.  There is NOTHING stopping the two parties involved
> in an action to voluntarily submitting to arbitration.  There is no
> compelling reason to MANDATE it, except to benefit the trademark
> holder.

Proof by repeated assertion; juxtaposition of unrelated facts.

> Your earlier contention that this would help the small business owner
> is nothing short of disingenuous.

No, it's a simple fact:  A small business owner has a trademark; a 
cybersquatter grabs the name, along with a thousand other trademarks 
of small businesses, and offers to sell them for, say, $500 apiece.  
The small business owner cannot afford the time and money for taking 
the squatter to court, and so pays the $500.  OTOH, cheap, expedited 
arbitration would work to the advantage of the small business 
person.

To the extent that arbitration is cheap and fair, it always benefits
the small player.  Deep pockets can always go to court, shallow
pockets can't.  Therefore, given that there is always ultimate
recourse to the courts, the important thing about the DRP is that it
be cheap and fair.  All the rest is smoke and mirrors. 

-- 
Kent Crispin                               "Do good, and you'll be
kent@songbird.com                           lonesome." -- Mark Twain