RE: [gnso-idn-wg] Item 4.5.4

["Olof Nordling" <olof.nordling@xxxxxxxxx>]

Charles and Hong,
I saw this thread as a continuation of earlier discussions rather than as
suggestions for changing the draft final report. I trust I was right in that
assumption.
Best regards
Olof

-----Original Message-----
From: owner-gnso-idn-wg@xxxxxxxxx [mailto:owner-gnso-idn-wg@xxxxxxxxx] On
Behalf Of Charles Shaban
Sent: Thursday, March 22, 2007 7:08 AM
To: Hong Xue
Cc: rmohan@xxxxxxxxxxxx; subbiah; Olof Nordling; gnso-idn-wg@xxxxxxxxx
Subject: Re: [gnso-idn-wg] Item 4.5.4

Dear Hong and Colleagues:

What you stated about trademarks is true that it is territorial...
and as you know more and more countries are becoming members of
Madrid protocol and similar international agreements. It is not
sacred that we should not discuss but at the same time we should not
ignore the real life policies (when there is an infringement in real
life on a trademark most of the time it is solved with the TM
registrar and does not reach courts) for me cyberspace is a new way
to handle and work with what we used to do before cyberspace and most
of the times the same rules applies after customizing them to
cyberspace. By the way not only in IDN and Domain names but in all
our "electronic" dealings.

Best regards,

Charles 

"Hong Xue" <hongxueipr@xxxxxxxxx> on Wednesday, March 21, 2007 at
5:48 PM +0000 wrote:
>
>>Ram: Insofar as there is legal precedent and case law, then we
>should allow the law to run its course.
>
>Confusion with a trademark is, indeed, assessed phonetically,
>visually and meaningfully in a specific trademark regime, which may
>based on statutes, case laws or both. But the issue hereÊis whether
>an IDN policy should and can follow the trademark law(s) at all. 
>
>I'm surprised that trademark right or other intellectual property
>rights are deemedÊsacred and mysterious in some ofÊWG discussions.
>Legally, that's not true.Ê
>
>Trademark confusion issue is solely defined by the law of a specific
>country in a specific territory and is very much decided in a
>case-by-case context. It must be an illusion if a trademark owner
>declares that the trademark is protected anywhere anytime. Even if a
>trademark is registered or well-known in one country, it may not be
>protectable in another country because it is not registered orÊused
>inÊthe secondÊcountry or there is no trademark protection in the
>second country. Irrespective of international treaties of
>intellectual property protection ( e.g. Paris Convention), both
>exclusivity and territoriality are the key features of intellectual
>property rights. We cannot merely stare at the former but totally
>ignore the latter.
>
>Bringing trademark arguments into IDN policy will actually stretch
>the scope of the protection for theÊright and break the balance of
>interests in the existing intellectual property system. I do believe
>that intellectual property issues shouldÊstay in the course of
>"law", not intervening IDN policy. 
>
>Hong