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Re: [wg-b] Preliminary Questions
>>to me, a lay person, the idea of protecting 'famous' names seems utterly
>>unfounded. could someone please explain why the internet should be offering
>>protections to coca cola which go beyond what they currently have in the
>Famous marks are protected by the Paris convention and the TRIPS agrement;
>international law recognizes them, so it's a question of setting up
>mechanisms to protect the rights they already have.
>However, in the absence of any ruling by any legal body anywhere that a
>certain trademark is "internationally famous", I think it's preposterous
>that ICANN or any body associated with it should take on the role of
>deciding, FOR THE FIRST TIME IN HISTORY, whether a trademark is
>"internationally famous" or not.
>I think we have an *excellent* excuse for delay and inaction on this issue,
>and that ICANN should grab that excuse eagerly.
The following is not intended to be a defense of the WIPO exclusion process
- but an attemtp to clear up what I believe as some erroneous factual
As acknowledged by the first poster, protection of famous marks is a treaty
obligation of signatories to the TRIPS agreement (and that's your country
Existing law is always being applied to new fact patterns - I would not
characterize this process as "the internet ofering protection . . .beyond
what they currently have in the law", but as the application of existing
law to the Internet. I think the burden should be on those who wish to
argue why the domain name process SHOULDN'T be in accord with international
law. Because it's difficult to apply isn't a good reason - we have had
complex multi-jurisdictional fact patterns since the first Phoenician had a
dispute with the first Greek (or perhaps it was a shady Polynesian in an
outrigger), and the law has adapted to resolve such disputes.
As for whether a body has ever decided that a mark is internationally
famous, that is actually often a holding in a famous mark case. A tribunal
will make a two-part finding - that the mark has an international
reputation, and that that reputation has extended to the jurisdiction in
question such that the mark should be protected. So a tribunal would not
be making decisions for the first time in history in all caps.
As for the argument in favor of delay and inaction - I understand that you
probably did not intend to be interpreted literally - but no, arguments
against famous mark exclusion are arguments against the exclusion - they
are not arguments in favor of delay and inaction. If you want to vote no,
As for delay and inaction, bear in mind the interplay between working
groups A, B and C. There is a posting today in WG-C which states one view
quite clearly - if there are adequate safeguards against piracy, then the
number of new gTLDs becomes less important. If there aren't adequate
safeguards, then the number of new gTLDs should be zero.
I concur in that view.
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