> Only 2 experts are required - system analyst and TM lawyer.
It's not as easy
as that. For every 2 experts that you find, the defence with all their resources,
would probably find more policy experts to defend their own case.
> So if DuPont
was given the prompt -
> Enter your EXACT and FULL trademark:
would not have entered "The miracles of science"?
> Not doing so would be fraudulant,
would it not?
Legally there's no difference than the previous system. In the previous
Sunrise system registrants were still required to enter their EXACT and FULL trademark
in the fields. Having computer-aided validation to check that it matched first may
have prevented more honest registrants from submitting an application, but the sheer
popularity of Sunrise shows that there's a lot of dishonest people that would gladly
register the same name, given the opportunity.
Of course this is my opinion, and
possibly just a theory: but I would bet that if Dupont didn't snag science.info another
squatter would have, given the chance.
If I was counsel for the Defence, I'd argue
that not having validation would more easily trap registrants who were obviously
in violation of the rules. Think of a bank vault (your analogy) that was only allowed
to be entered by rightful bank customers. It was left unlocked for them but with
security cameras to trace any unauthorized intruders. This is opposed to a locked
safe with no cameras that said "sorry that's the wrong safe combination but here's
the right one. Try that instead".
> So then - that would have reduced domains
wrongly entered into
Not having computer-aided validation, doesn't
diminish the legality of the contract made between the registry and the registrant
- most knew that they needed to have an exact and valid trademark - but violated
the rules anyway. I believe validation would have increased the incidences of more
undetectable dishonest registrations.
> Made worse? - I presume then that you
agree that they
> were "professionally negligent".
I don't agree or disagree.
All I'm saying is that both would be difficult to prove, and with requestionable
> You are funny Alex - try to find an incompetent imbecile who
> argue they allowed all crap data to be entered, to trap squatters
Well I guess I'm such an "incompetent imbecile": I'd happily argue that if
you didn't allow "crap data" then it would have been much more difficult, if not
impossible, for a computer program to tell the difference between a legitimate registrant
and a non-legitmate one that entered "none" or "12345" for their TM number. Considering
Afilias made the policy decision of not individually checking registrants due to
price considerations, detecting such variances after registration through a computer
> On the balance of probabilities - which do you favour?
Professional Negligence or fraud?
From a prosecution point of view, both depend
on what sort of evidence is avaiable.
> Private Policy, to quote you, "does
not completely indemnify any
> signatory against professional negligence."
Remember reading somewhere that one registrar required a fax of
certificate to proceed. Why not a form letter/fax to a
> countries trademark
office? A couple of minutes per registration
> should cover it. The cost would
not be prohibitive, would it?
I should point out that professional negiglence when
it comes to policies and/or contracts only cover the *implementation* of said policies/contracts.
As long as the policies themselves are not illegal, then no legal recourse - even
if there were patently better policies which could have been made. Negligence only
covers the way in which the policy is carried out. So even if the policy is itself
seemingly unfair, if it was carried out the way that the company said it would be
done, then you have no legal recourse against the company.
> In fact, some
may argue that whatever the cost - it would be
> essential to remove this FLAW.
a private company, Afilias could essentially make whatever clauses and policies it
wanted (obviously in this case sanctioned by ICANN in order to grant it TLD-registry
status). By registering the name (despite the lack of alternatives), each registrant
has to agree to/abide by the contractual clauses notwithstanding lack of prejudice.