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[comments-wipo] Comments on the The Preliminary Report of WG-A
There is agreement that mandatory ADR, particularly in cases of bad faith
is the preferred approach to dispute resolution, subject to the proviso
that an ADR decision
would not preclude a party from seeking relief in court, and that the ADR
decision would not
be binding on a court having jurisdiction. The new "universe" of the
Internet, with global, trans-
national dimensions, makes it nearly impossible to expect national courts
to deal with certain
disputes that are bound to arise.
There is much that could be said about this report, but the passage quoted
out at me. It is assumed that one knows what "cybersquatting" means. Is
Justice White's comment about obscenity -- "I can't define it but I know it
when I see it?"
The reference to "a court having jurisdiction" seems to recognize that
etc., do NOT have jurisdiction over trademark aspects of domain names. I
such acknowledgment was intended, true that it may be.
Making it "nearly impossible to expect national courts to deal with certain
disputes . . ."
seems quite presumptuous: by what expertise does any ADR policy show that
do any better? The text goes on to acknowledge a deep and resounding
deal with national trademark laws, so why is this process continuing?
Other than having inherited the notion from Network Solutions, what is the
for techies to get involved in trademark law in any event? One of the
of the internet, which it seems to me should be protected at all costs, and
regard to whatever other inconveniences may arise therefrom, is that of
access. What possible rationale can be advanced for the notion that in
order for a
person to become an internet participant, that person must agree in advance
up certain rights that are established by the law of that person's country.
In the U.S.,
that counts as a restraint on free speech, and while governments have the
to condition the use of public facilities such as telephones and the like
of certain regulations, DNSO and ICANN certainly do not. To exact a price
of an abandonment of a constitutional right to seek redress in the courts
as the ticket
for entering into the internet as a domain name holder, by way of a
contract of adhesion
through which one is forever precluded from so entering unless the contract
seems to me to be contrary to every universal principle of justice, and
very likely an
actionable offense. (Just because no one has yet had the wit to properly
on its policy does not legitimatize that policy.)
In short, I see at least some of the WIPO document, and some of this
having swallowed whole much of the "NSI common law of trademarks," in spite
of the oft-repeated observations in U. S. Federal Court opinions that NSI
re-write trademark law. By sheer repetition, a mindset has been established
which the onus of abiding by various rules and policies is again placed on
who may be perfectly innocent domain name holders, while one NEVER sees
any provisions through which a covetous trademark owner would be called to
account for attempting to poach on a legitimate, lawfully acquired and
held domain name.
The playing field would seem still to be tilted precipitously.