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Username: LegalEagle
Date/Time: Tue, January 29, 2002 at 12:44 AM GMT
Browser: Microsoft Internet Explorer V5.5 using Windows NT 5.0
Subject: my experience dictates that it is


> 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:
> They 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 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
> Sunrise.

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 legal recourse.

> You are funny Alex - try to find an incompetent imbecile who would
> argue they allowed all crap data to be entered, to trap squatters
> out.

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 is paramount.

> 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
> trademark 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.

As 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.

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