Question: If you think courts should decide conflict between trademarks and domain names, what courts should decide and what if different courts reach different decisions? Given the cost of legal proceedings, what would prevent domain holders from losing their domains by default if challenged by well-funded interests?

Nominee Replies

Lawrence Lessig - posted on 2000-10-09 20:32:36 The law has a set of rules for governing conflicts. Costs are a problem, but the danger of ICANN as policy maker is much more dangerous. Barbara Simons - posted on 2000-10-09 18:32:55 ICANN should not be making trademark or other kinds of law on the Internet. ICANN is not a governmental agency, nor is it one that has been recognized internationally. These issues should be decided in the courts. Hopefully, once we have a very large number of TLDs, many of the trademark issues will disappear. Unfortunately, the problem of unequal financial resources cannot be eliminated by ICANN. Even if ICANN proclaimed that the UDRP alone should be used to decide conflicts regarding domain names, ICANN could not prevent an individual or organization from taking the case to court. Emerson Tiller, J.D., Ph.D. - posted on 2000-10-09 15:57:53 I'm not ready to give up on the UDRP, if it can be reformed with a better system to appeal bad decisions, and better language in the UDRP text to protect domain name holders' rights. The courts would generally be better as a back up, given the cost and variety of jurisdictions (countries) that would be involved. Harris Miller - posted on 2000-10-09 11:38:17 I hope courts would be the exception rather than the rule as the locale for deciding naming disputes. If they become the rule, the costs would bog down the process, prejudice for those with deeper pockets, and, perhaps, undermine the credibility of the ICANN process. I am not saying that parties in dispute should not be allowed to go to court ultimately, but rather that dispute resolution mechanisms should be the norm. Karl Auerbach - posted on 2000-10-09 09:05:46 The legal systems of the various nations of the world ought to be deciding disputes between those who use domain names and those who have trademarks. ICANN has not legitimate role in establishing laws that decide these matters. I disagree your sugestion that legal processes would tend to be more dominated by well-funded interests than is ICANN's UDRP. Personally, I trust the historical process of evolution of law - slow, stumbling, and sometimes temporarily unfair - over an attempt by a non-representative body, such as ICANN, to impose a solution, particularly a solution that was authored by a group, i.e. the trademark lobby, with a very clear agenda and stake in one particular outcome.