Re: Why we care about lock-in (was Re: the free market decides )

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

>


>But at the end of the day, the number of people who have
>run afoul of NSI's dispute policy is an extremely
>minute fraciton, and as you mentioned, the court
>system works to keep things in check, and common
>sense prevailed.

It's not so minute if you're the one writing the six digit check.

>From NSI's 10K report filed March 31, 1998:

 Domain Name Dispute Policy Administration. The Company's established
domain name dispute policy is an integral part of the maintenance and
administration of the Company's domain name registration business. This policy
seeks to take a neutral position with regard to domain name disputes between
trademark owners and domain name holders and is designed to address claims
that
a domain name registered by the Company infringes a third party's federal
trademark. As of March 13, 1998, the Company had received over 3,600 written
objections to the registration and use of certain domain names. Of these,
approximately 1,960 were disputes in which the Company's domain name dispute
policy was involved. Although 42 out of these situations have resulted in
litigation involving the Company, as of March 13, 1998, no payments have been
made by the Company to any plaintiff and only four of these cases are pending.
The Company expends considerable management and legal resources in the
development, refinement and administration of its domain name dispute policy.
See "Item 3 - Legal Proceedings."


First, the 3,600 number is not the entire universe.  Some disputes are
resolved without NSI involved.  One client of mine was the target of
someone who registered 200 variants of its marks as DNs and we didn't
involve NSI.  Second, because of the identicality requirement, many
companies can't use NSI.  Third, many foreign companies are dissuaded from
using the policy (for whatever reason).  So don't place that much reliance
on March 98 number as the uppermost size of the DN/TM issue.

Most importantly, if we are asking the question - is there a problem to be
solved, I think that the absolute number of disputes, rather than a
relative number compared to the total number of domain names, would be more
important.  Think of the entire number of contracts that are entered into
in the world - I bet a person enters into ten contracts.  The number of
disputes which arise from contracts is miniscule in comparison, and yet we
need just contract law, and both full (civil court) and  expedited
(arbitration, mediation) fora to handle these disputes.  3600 trademark
disputes would flood the courts (and many companies are targeted over and
over again - no company can easily afford 40 litigations at a time, as NSI
is learning now).

As for whether NSI was better or worse than someone else would have been it
in its position - well, there is no context to judge whether someone else
would have been sued more or less than 42 times in a three year period.

But NSI's process didn't recognize common law rights and didn't conduct a
likelihood of confusion analysis and therefore had unjust results.  

NSI's quasi or pseudo or whatever government status did put it on the spot.
 It didn't appear to be able to kick the problem upstairs to the NSF.
However, you either resolve disputes (which, if you are a technical company
under a government contract would mean outsourcing dispute resolution to
someone qualified) or you say you're not qualified to resolve them and
punt.  Sit, stand, but do not wobble.  NSI claims it wanted to be neutral,
and then it wobbled.

Lesson - courts, administrative tribunals and ADR entities should resolve
disputes.




>
>Some points to consider:
>
>Although NSI appears to be doing a dumb thing, wouldnt t
>be worse if some dumbjudge simply imposed an injunction
>on them and stopped all dom reg/modify processes because
>NSI didn't do what they do now ?
>
>There is currently insufficient precedent. In short, NSI
>feels it needs to go to court doing the "wrong thing"
>to set precedent to avoid the above scenario.
>
>There is always the possability that with something
>as ugly as the IAHC/WIPO plan than Juno wuold never
>have got juno.com in the first place.
>
>
>
>--
>"To find out what your opponent is up to, look at what he
>says about you" - unknown
>
>
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