Re: [ga] ICANN benefits

["Tim Langdell, PhD" <langdell@technologist.com>]

Kent et al,
----- Original Message -----
From: "Kent Crispin" <kent@songbird.com>
To: <ga@dnso.org>
Sent: Saturday, April 07, 2001 11:18 AM
Subject: Re: [ga] ICANN benefits


> On Sat, Apr 07, 2001 at 02:04:44PM -0400, Sandy Harris wrote:
> >
> > If the adjudicators cannot get this right on their own -- and there
seems to
> > be considerable evidence that at least they haven't to date -- then
methinks
> > we need some explicit guidance added to the UDRP.
> >
> > In particular:
> >
> > A satire domain -- say, ibm-sucks.com or
Incomplete-But-Marketable.net --
> > is entirely legitimate.
>
> One of the fundamental problem in that notion, however, is that "satire"
> is an intrinsically subjective judgement.  The UDRP is an arbitration
> proceeding, not a court; the rules of procedure are much simpler, and
> the safeguards are not as elaborate.
>
> > The only URDP case that should even be considered
> > against such domains
>
> The problem is not so much protecting such domains; the problem is
> defining them.
>
> > Also, multiple non-conflicting uses -- as in Sun Oil and Sun
Microsystems,
> > both valid trademarks in at least the US -- should be explicitly
allowed.
>
> It is.

I presume you meant "they are". But the point being made was that currently
only one entity can have (say) "sun.com" even though there might be equal
claimants on the name (Sun Oil and Sun Microsystems to name but two). So the
answer is "they are not allowed".

>
> > The burden of proof for alleged conflict is on the complainant.
>
> It is.

Not so if the system makes any basic assumption at all as to fundamental
rights. For instance if one assumes that ownership of a "registered"
trademark gives some fundamental right then the burden of proof switches to
the defendant, which to some seems unfair. To other seems entire fair. Where
it gets complicated is that you do not have to have a registered trademark
in any given country to "own" a trademark. You can claim rights based on
common law entirely legitimately.

>
> --
> Kent Crispin                               "Be good, and you will be
> kent@songbird.com                           lonesome." -- Mark Twain
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