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Username: Garry Anderson
Date/Time: Tue, January 29, 2002 at 12:40 AM GMT
Browser: Microsoft Internet Explorer V5.5 using Windows 98
Subject: Defendants, you are accused of fraud - how do you plead?

Message:
 

 
I bow to your experience and expertise - however this case seems quite straightforward.

I know there is unwritten rule, that says money and power nearly always win - but sometimes Truth and Justice will prevail.

As you are counsel for the Defence - I shall be Prosecution - trainee grade!

You will have to make allowances.

My opinion and comments are on your client - not you.

Given your experience, you should give me a thrashing - however good luck - I have Truth on my side ;-)

*****

It shall be noted, Ladies and Gentlemen of the Jury - that the defendants are without honour - they do not deny the use of propaganda and spin.

They are truly deceitful - Sunrise does not solve anything:

1) It will not solve 'consumer confusion'.

2) It will not solve 'trademark conflict'.

3) It will not stop anybody 'passing off'.

4) Even if a thousand Sunrises in so-called 'open' TLDs - not all trademarks are guaranteed to be able to use their mark.

In actual fact - Sunrise makes things a lot worse:

Primarily, Sunrise abridges what words people like yourself can use - violating the First Amendment.

DEFENCE, IF YOU DARE - DENY OR ADMIT THIS NOW - IF YOU HAVE ANY HONOUR.

What about small businesses, who may be buying their trademark and similar sounding domains in every new gTLD - a trademark tax?

As Defence admits "there is solution to exclusively identify all trademark domains" and unless the Defence answers those charges above - then does that not prove UN WIPO and US DoC CORRUPT?

To make comment on Defences statement:

"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."

It will be VERY easy to cross examine their witnesses.

To their I.T. experts, I should say, "Is not the main priorities for any system like this, to have nothing less than ACCURATE SECURE DATA?"

Also, "Is it ALWAYS essential to validate user entry of data on critical information - for several reasons e.g. in case of operator error?"

Also, "Is it not true, that as offline validation of the actual trademark is possible, it could be easily incorporated into the program e.g. by way of a flag after it has been checked?"

Those are just three sample questions.

To their Legal experts , I should say, "Is it not an abuse of graphical trademark to claim it as a word?"

Also, "Ignoring unfairness to non-trademarked businesses; Is it not unfair competition for one trademark to use their mark on the Internet, when another using same or similar words - in different type of business and/or country cannot?

Also, "There is solution to exclusively identify all trademark domains - so should trademarks be used to abridge peoples use of these words?"

Those are just three sample questions.

The Defence admits, "Having computer-aided validation to check that it matched first may have prevented more honest registrants from submitting an (INCORRECT) application,"

Thereby allowing them the opportunity to correct it.

But trys to detract from this with, "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."

The fact remains - validation prevents wrong entry and makes for more ACCURATE DATA.

The Defence argues, "that not having validation would more easily trap registrants who were obviously in violation of the rules."

Also saying (using bank vault analogy), "It was left unlocked for them but with security cameras to trace any unauthorized intruders."

The camera was not working - it was ignoring people 'in disguise' or of different countries - the BBC called it a "Police farce".

Surely, the most sensible solution - as it was easily possible - was to lock the vault?

Like any proper security system, let only those in after their identity has been checked?

This fraud lost the poor people in Landrush a load of money and lost them the best opportunity to get domain - the vault was left open - why is it not Afilias fault?

Defence says, "I believe validation would have increased the incidences of more undetectable dishonest registrations." also
"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."

This is just spin and false argument, only thought of after Afilias had been found out trying to defraud customers.

What about checking the vaste majority of TM numbers that could be true - but possibly not?

This is not a computer game to try hack into a system - it is supposed to be a legitimate business with ACCURATE SECURE DATA.

Validation should always be done in a logical and structured way - it is a lie to say that it could not be done properly.

Price considerations?

Do car manufacturers not put in engine because of price considerations?

You cannot leave out essential requirements to meet a price.

If it costs 50 dollars to make Sunrise domain secure - that is what it costs.

Defence is being disingenuous - how much would it have cost to spend less than two minutes on each domain at US or UK and other online trademark databases? Less than a dollar.

How much to fax trademark certificate? Less than a dollar.

There was no attempt to validating trademarks - was there?

Defence says, "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."

The policy was carried out in a way which afforded Afilias the greatest profit at the expense of proper procedure - until they were found out.

The policy was carried out in such a way - it was worse than negligent - it actually defrauded customers.

The Defence cannot even deny Sunrise is all propaganda - so rendering all their argument wasted.

That concludes Prosecutions opening statement.

I await reply from Defence.
 

Link: WIPO.org.uk


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