Re: Jews for Jesus

["Martin B. Schwimmer" <martys@interport.net>]

At 02:02 PM 8/21/98 -0400, you wrote:
>The ongoing debate over Jews for Jesus appears to me to miss the essential
point
>of these deliberations.
>
>We may agree or disagree with the court's decision. We may agree or
disagree with
>the way in which particular cases attempt to reconcile freedom of expression
>concerns with trademark law.
>
>But aren't we losing sight of the most important fact?
>These decisions have to be made by COURTS, or by private arbitrators
voluntarily
>engaged by the disputants. They cannot and should not be made by domain name
>registries.

Agreed.  However, in order to reconcile law with the novel challenges posed
by the Internet, it may be advisable to supplement those types of dispute
resolution systems wtih new systems such as arbitrators empowered by New
IANA or by administrative law systems (comparable to the U.S. PTO's
Trademark Trial and Appeal Board) under national governments.  That's why
we need studies.

>
>Correct me if I'm wrong, but the fundamental assumption behind the WIPO
>proceeding and the position of INTA is that trademark protection must extend
>beyond normal legal processes and be pushed upwards into the very act of
>registering a name.

If normal legal processes govern the very act of registering the name, or
more accurately, if the existing laws protecting rights extend to the mere
registration of a name, as it has, then it is not an extension beyond
"normal legal processes."  Application of existing law to new fact patterns
is not necessarily a power grab - it's just the application of old law to
new fact patterns.

I don't advocate the creation of new laws - I'm not aware of sonebody
taking that position, but new tribunals may be useful in applying existing
law.  And yes, the multi-country nature of the Internet makes this easier
said than done.

Incidentally the very act of registering a corporate name might be a tort -
see the Glaxo Wellcome case in the U.K. as a recent example.



 >The TM interests want to incorporate the trademark policing
>process into the process of domain name registration.


The TM Interests want verification processes in domain names which are to
be used in commercial TLDs. Other groups want various requirements in
domain name registration for various  reasons. Domain name holder interests
can also be served in the domain name registration - I'm sorry the
professor thinks I am redundant but - no one is served if anonymous
untraceable folk can set up domain names which allow them to rip off
amazon.com or junglee.com or whatever.



>
>The application of trademark law to domain names is a very interesting
topic, but
>it is not the subject of the WIPO proceeding and is not directly relevant to
>IFWP.

Here is the excerpt from the White Paper:

 The U.S. Government will seek international support to call upon the World
Intellectual Property Organization (WIPO) to initiate a balanced and
transparent process, which includes the participation of trademark holders
and members of the Internet community who are not trademark holders, to (1)
develop recommendations for a uniform approach to resolving
trademark/domain name disputes involving cyberpiracy (as opposed to
conflicts between trademark holders with legitimate competing rights), (2)
recommend a process for protecting famous trademarks in the generic top
level domains, and (3) evaluate the effects, based on studies conducted by
independent organizations, such as the National Research Council of the
National Academy of Sciences, of adding new gTLDs and related dispute
resolution procedures on trademark and intellectual property holders. These
findings and recommendations could be submitted to the board of the new
corporation for its consideration in conjunction with its development of
registry and registrar policy and the creation and introduction of new gTLDs. 

I think that the above text supports the proposition that the application
of trademark law to domain names is a part of the request to WIPO.  I do
not dispute that this is an interesting topic some of the time.


 >I am, like DNRC, very concerned about the fact that in the courts, in both
>the US and elsewhere, trademark owners have won some very sweeping legal
>victories that appear to broaden their rights at the expense of other
Internet
>users. But I can live with that--we have opportunities to change the law, to
>argue cases before courts, etc. What I cannot and will not live with is the
>attempt to turn domain name registries into regulatory agencies run by
>intellectual property lawyers.


I don't think domain name registries should be regulatory agencies.  I have
not seen postings to this list that suggest that people do think that.  I
think that domain name registries will be handing out what functions as a
permit to do business on the Internet (and the domain name vs. trademark
issue is not relevant to this point) and therefore their registration
processes are quite important.  It would be nice if would-be registrars in
a spirit of cooperation voluntarily said "yeah, we will require some type
of identity verification" or "we won't take the position that we have the
right to sell off the coca-cola name over and over again" or "we will
acknowledge that there has been a system for portecting commercial
identities for centuries before we came along and we will harmonize with
that system rather than take the position that we mark the start of time"
for example, but they don't seem to say that very often.  

I think that phrases like "I cannot and will not live with . . ." makes it
sound like we're talking about the French Revolution here.  It seems to me
like mis-directed anger and the problem is, perhaps, it hardens people's
positions into taking a hard-line "we don't need your stinkin' trademarks"
attitude.  But trademark owners are not the enemy - there is no enemy.
This is advice - this is not a threat (because I don't to threaten and I
don't have anything to threaten with) but if the DNS is conducted without
regard to any kind of societal responsibility, it won't be regulated by
intellectual property lawyers (who don't want the job) - the regulation
will be down by the various governments.

And you can't fight city hall.




>
>--MM
>
>
>