[comments-wgb] Sunrise + 20-proposal

[kuntze@boehmert.de]

Being a German attorney with a practice of more than 20 years in trademark matters I strongly support the "Sunrise + 20"-proposal supported by INTA, this for the following reasons:


1.	Firstly, as a mere practical argument, the Sunrise concept would avoid having to conduct many arbitration-proceedings according to the UDRP of ICANN. If domain names for new gTLD's would be registered on a first-to-come-first-to-register-basis, inevitably a great number of conflicts will arise between trademark owners and registrants who try to profit from the value of this trademark by registering a identical or similar domain name on their behalf. Accordingly, the introduction of new gTLD's would cause a great wave of proceedings according to the UDRP, which may hardly to be coped with within reasonable time. Allowing trademark owners to register their marks as domain names in advance will avoid many of such conflicts from the start.

2.	Contrary to deviating opinions the concept of privileging owners of registered trademarks against other parties has quite a model in the law: According to Article 4 of the Paris Convention (PC), which is valid in most of the industrial countries worldwide, trademark owners are given the right to claim the priority of the trademark registration in their home country also for trademark applications filed in other member countries of the PC (whereby of course certain conditions and especially a time limit of 6 months apply). Effectively this means more or less also "backdating" the priority of the foreign trademark application, which also privileges this trademark owner priority-wise in relation to other parties who have filed their mark at the same date, yet without being able to claim a foreign priority according to Article 4 PC (or the equivalent of their local law).

3.	The concept of priority was even applied in cases where a new legal system was introduced for the first time: At the introduction of the European Community Trademark (CTM) it was also possible to claim the priority of an older national registration - again under specified conditions -, even for the first marks filed. Accordingly, while all new applications having been filed in advance or on the first filing date of April 1, 1996 were only granted a filing date of April 1, 1996, applications claiming the priority of a corresponding older foreign registration were granted a priority prior to April 1, 1996! 


Accordingly, allowing trademark owners to register domain names prior to other users basically means only to apply the concept of priority - being a leading principal for intellectual property rights - also in relation to domain names so that any criticism concerning a lacking legal basis for the "sunrise-proposal" appears to be unjustified. The situation at the introduction of the CTM may be regarded as a precedent for the introduction of new gTLD's.

These are only meant to be brief comments and I am certainly prepared to substantiate my position in more detail, should this be of any interest.

Regards
Wolf-Dieter Kuntze