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Comments on the scope of the Legal Rights Objection

  • To: 3gtld-dispute@xxxxxxxxx
  • Subject: Comments on the scope of the Legal Rights Objection
  • From: Heather Forrest <heather.forrest@xxxxxxxxxx>
  • Date: Mon, 23 Nov 2009 09:20:27 +1100

Please accept my comments below in regards to the inappropriate limitation of the scope of the Legal Rights Objection.

3.1.1 and glossary definition of “Legal Rights Objection”: At present these do not appear to fully encompass GNSO’s Recommendation 3, which addresses infringement of "the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law." DAGv3 inappropriately limits the scope of this objection to trademark infringement. There is a significant difference between the wording of the Morality and Public Order Objection (and that term’s glossary entry) and the Legal Rights Objection (which fails to expressly provide for the recognition of rights “under generally accepted and internationally recognized principles of law”). In order to conform to the GNSO's Recommendation, 3.1.1 and the glossary definition of the Legal Rights Objection should be described in a manner similar to the present Morality and Public Order Objection, incorporating the specific direction as to scope provided by the GNSO. and 3.4.2: The phrase “existing legal rights”, as employed by the GNSO in its Recommendation 3, suggests a significantly broader scope than that articulated by the term “rights” as defined in present 3.4.2. Notwithstanding the inclusive, rather than exclusive, nature of the parenthetical in and that the factors as presently listed in 3.4.2 are “non-exclusive”, the scope for objection on grounds of ownership of other intellectual property rights or indeed other non-IPR rights arising under “generally accepted and internationally recognized principles of law” (see “Examples” in Recommendation 3) should be clarified, in particular that, consistent with the GNSO’s Recommendations, infringement of internationally recognized rights other than trade or service marks is actionable under this objection. The party with standing to object should also therefore be referred to as the “rights holder”.

Respectfully submitted,

Heather A. Forrest
Lecturer in Intellectual Property Law
University of New England
Armidale, NSW Australia

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