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Re: [IFWP] Revised bylaw Article VI-B (DNSO subject-matter jurisdiction)

Kent and all,

Kent Crispin wrote:

> On Sun, Apr 11, 1999 at 10:19:30AM -0700, Roeland M.J. Meyer wrote:

- snip other diatribe a la Kent "Crispy" Crispin -

> >
> > In that case, ICANN wouldn't have a choice, as long as it is
> > California-based.  In your example, IOD and ICANN are both
> > incorporated under US jurisdiction.  Therefore US trademark law
> > applies, definitely, as has been discussed here before.  It's a
> > matter of prior use, in trade.  If they tried to recognize the German
> > claim, IOD would (probably) hand them a TRO, along with the suit for
> > damages and dilution of mark.  The case would never see a German
> > court, if IOD was at all intelligent about it.  Please remember also
> > that the defendant is customarily awarded the home court, or choice
> > of venue.
> Once again, you completely miss the point.  The point is not that
> ICANN will grant private ownership of a .web TLD to a German
> company; the point is that it WON'T grant ownership to IODesign,
> because of the legal complications.  And in fact it won't grant
> private ownership of a TLD to anyone.

  ICANN has no power to grant ownership of any TM'ed TLD to anyone
or any company.  In that I believe that IOD has a SM on .WEB it is
IOD's decision should they decide to register .WEB or 'WEB" as a
TM.  IF or once that is done than ICANN would be in a bit of an
embarrassing position.

> So IODesign can always try to get its .web going in alternate roots,
> but it will never be in the real roots.

  Define "Real Roots".

> However, that doesn't preclude the possibility of there being a
> public interest .web in the real roots.  IODesign went to court once,
> and backed down real quick, and, as I have said, I have been told by
> quite competent TM attorneys that they simply don't have a case.
> You mention TROs as if you knew what you were talking about -- IODs
> TRO was denied.

  It is true that IOD does not have a strong case from a TM standpoint
as they do not have a TM filed on .WEB or "WEB".  This is IMHO a
very short sighted business decision on the part of IOD at this juncture.

> > > And, on the other side of the coin, if ICANN ever adds a privately
> > > "owned" TLD, ICANN will face a whole raft of legal challenges
> > > from other people who want their private TLD in the root.
> >
> > This is completely true.  They could not be exclusionary, on a
> > selective basis.  They have to either be all-inclusive, or
> > all-exclusive.  Half-way is not going to cut it.
> That's right.  And it will be all-exclusive, because the
> "all-inclusive" model requires choices being made that will be
> contested in court.

  This statement is pure nonsense.  In other words such a mindset
in not necessarily the case, nor is it desired by most parties involved,
irrespective of their root server status.

> So the only new TLDs that get in the root are
> going to be run in the public interest, not for private gain.

And this is a good position to take to a point...

> Fortunately, the POC names, with the possible exception of .web, are
> clear of any reasonable IP claims.

Wrong.  We have filed TM's on a couple of them.

> Of course, idiots can always
> start groundless suits, but groundless suits don't last.
> > > The basic issue is that ICANN will have the ultimate decision
> > > responsibility for insertion of TLDs in the root; and hence the
> > > ultimate legal liability for those actions.  As has been mentioned,
> > > ICANN has been envisioned as a sort of "standards body", with a TLD being
> > > effectively presented as an Internet standard -- and in
> > > order to avoid anti-trust litigation, those standards will have to
> > > be open, non-proprietary standards.
> >
> > This is a point that ICANN hasn't understood yet.
> On the contrary -- ICANN understands perfectly well.  It is ORSC that
> fails to understand -- it is ORSC that is trying to get proprietary
> TLDs in the root.

 Possibly.  I am not convinced of this.

> --
> Kent Crispin                               "Do good, and you'll be
> kent@songbird.com                           lonesome." -- Mark Twain


Jeffrey A. Williams
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
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