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Username: Garry Anderson
Date/Time: Sun, January 27, 2002 at 11:40 PM GMT
Browser: Microsoft Internet Explorer V5.5 using Windows 98
Subject: "Professional Negligence" could be proven on at least two levels

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In my experienced opinion "Professional Negligence" could be proven on at least two levels in Sunrise:

I have been programming since 1980 and looked into trademarks since end of 1999. Have had lawyers confirm the solution to all trademarks using their mark on the Internet - without 'confussion', 'passing off' etc. - so have good knowledge of this.

But any competent programmer and lawyer would be able to confirm the following points.

Anyone wishing to use "professional negligence" against Afilias (though I believe it fraud) could do so on at least two levels.

FIRSTLY - data validation subroutines should have been used to pick up that trademark exactly matched the domain name.

This would pick up registrations like DuPonts of science.info, when they only had "The miracles of science" - overreaching trademark (unless the registrant lies).

http://forum.icann.org/cgi-bin/rpgmessage.cgi?newtldagmts;3C512C7E00002046

Afilias should have checked that domain was for word(s) and not a graphic - which would be overreaching trademark to claim it as a word.

Also the date of trademark should have been checked to be within valid range - and not default date.

In a project of this size and importance - the programmer, systems analyst and project manager WOULD KNOW they had to have data validation subroutines.

To not have data validation would not be just "Professional Negligence" - but would have to be a deliberate decision not to include.

They may plead bargain for "Professional Negligence", to try get out of charges of fraud.

SECONDLY - what is considered to be a 'flaw' in the system - the decision not to check the trademark itself:

It was intentional decision to make the system like that - with this FLAW.

Is it not "Professional Negligence" to put in this deliberate defect?

There was no attempt to make arrangements to checkout the owner.

Not to check the actual trademark data - to see if the details were valid.

On-line data is available for several countries - these could have been easily checked.

Afilias could have made arrangement with WIPO to check all United Nations countries.

I would say this intentional flaw, of not checking trademarks, is "Professional Negligence"  - don't you?
 

Link: WIPO.org.uk


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