Re: nsol exclusivity on .com and .net--for how long?

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

Mr. Howard wrote:

>What's wrong with that dispute procedure being the same one used to resolve
>all other trademark infringement disputes?  If a judge hears the case and
>decides there is infringement, then orders the infringement to cease and
>desist, is that not going to work?

Nothing is wrong with it, but civil suits regarding trademark infringement
and dilution are not the sum total of all trademark disputes handled by
tribunals and adminstrative agencies in the U.S. (nor in other countries).

Other disputes regarding the right to own a trademark registration are
handled by examiners (whose decisions are appealable to the Trademark Trial
and Appeal Board) and between parties in proceedings before the TTAB.

While the PTO and the TTAB are not paradigms of bureacratic elegance
(perhaps you saw the expose on the new PTO building last week on ABC), when
they work correctly they fulfill the function of keeping disputes out of
court.

So when some parties in the DNS sate that trademark owners should have no
more rights on the Internet then they have in real life (which as a
stand-alone proposition is a fine one) AND THEN define those rights as they
ability to go into court and spend several hundred thousand dollars to
regain the status quo (or pay off a pirate x percent of several hundred
thousand dollars), they are neglecting the fact that there is an
administrative agency which operates an administrative law tribunal to
resolve disputes in an at-times expedited (or at least cheaper) fashion.

>
>Like most people, including I am sure most lawyers, I would not want to have
>to keep upping the costs by dragging everything into court.  OTOH, a lot of
>things do get resolved just because there would be those costs if they don't.
>I simply see the wrongness in the NSI policy because it lacks the due process
>elements of a fair hearing of the evidence, including the requirement that
>infringement be shown by the accuser and not merely being asserted without
>any evidence of it.
>
>To me it does not matter whether the cases of record involve "big" companies
>or not.  There is a fundamental instability that exists if dispute resolution
>can result in suspension of operation (they call it "Hold") before all the
>evidence from both sides can be heard and someone competent to do so can make
>the preliminary or final decisions.

Well I think we would agree that domain name owners and trademark owners
(the groups overlap) have been victimized because of the NSI policy.

When I read the first NSI policy my initial reaction was that it awarded
the equivalent of a preliminary injunction without making plaintiff
establish that it was entitled to one. No revision of the policy ever
corrected it and no revision ever will because a private company will not
fund an administrative law tribunal.

Part of this I attribute to NSF's oversight (or lack thereof) and part of
the historical accident that NSF was the agency administering domain names.

I think the answer is to work towards a good expedited dispute policy, not
the absence of one.




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