Jac

Olebean

If you insist on being so selective with what you quote, then I am not surprised you are confused. And you don't have to remind me of my PAB election pledge, I wrote the blessed thing. The membership happens to be the closest stakeholder group to Nominet; they pay their dues and don't bitch and complain about how much either; they also deserve to be represented because they elected me; but (on nom-steer for instance) I have always been upfront about who I represent as a PAB member; and once more for the ole boys, it is the wider stakeholder communities.

If you want me to expound even further on that, I even included "domainers" in my definition of the wider stakeholder communities on nom-steer just this morning. And because I'm a tell it like it is kinda guy, I included them, even though I don't necessarily agree with their business model. If you can find fairer representation than that ole boy, feel free to put them up for the PAB election next year. All you need is one Member to propose you and another to second you; you don't even have to be a member yourself. Good eh?

I'm even on your side ole bean, and if you had one iota of common-sense as opposed to two iotas of non-sense, you'd stop trying to score points off someone who is actually trying to make things better for the whole community, even you.

Regards
James Conaghan
[PAB Member]

Jac

I've run out of sick leave, so I'm calling in dead.

Regards
James Conaghan
[PAB Member]

Jac

Here in the UK, trademark law allows for 2 companies to own the same trademark if they are used in relation to different products or services. As far as I understand it, trademark protection is only applicable within a defined territory, so 2 companies in different countries could effectively use the same trademark. However, domain names cannot operate in the same way because of the global nature of the World Wide Web . IE: 2 companies cannot operate with the same domain name.

IMHO a registered trade mark should be protected on the World Wide Web just as it is in the real world. Hence, the use of someone else’s trademark (as a domain name) will most likely be seen as an infringement of their rights in both the UDRP and the DRS.

In the now infamous "One in a Million" case (1997), the key to the decision seems to lie in Lord Justice Alduos' conclusion that the very act of registering a domain name that can in some way be associated with a company or brand name, "amounts to false representation which constitutes passing-off". His judgement further stated that either registering a company name without setting up a website, attempting to sell the name, or demanding money from a trademark holder, breaks the company's trademark.

I don't know if that judgement (or appeal) has ever been challenged but I don't think it has. (I am happy to be corrected.)

So the quick answer would seem to be "No, the co-existance of TM domains is not feasible and they cannot exist together".

Regards
James Conaghan
[PAB Member]

Jac

A woman and her husband interrupted their holiday to go to the dentist. "I want a tooth pulled but I don't want no anaesthetic cos I'm in a hurry," she said. "Just extract the little beggar quick as you like and we'll be on our way." The dentist was suitably impressed. "You're certainly a brave woman," he said; "so which tooth is it?" The woman turned to her husband and said, "Show him your tooth, dear."

If it's teeth you want pulling, come to my office. I do it without anaesthetic!

Regards
James Conaghan
[PAB Member]

Jac

In the words of the inimitable sneezycheese; I was only kidding.

I agree with what you say about the "less imperfect" option, but as I said long time ago, the parties to a dispute can bypass the DRS and go straight to court at any time, if one of them so chooses. My concern has been what it has always been, that the proper respect be given to the DRS if both parties decide to use it as an option to settle disputes. My initial foray into Acorn Domains found you and me skirmishing on what should and shouldn't be the case in a system that has already been defined and written into the Terms and Conditions of Registration (albeit not to yours and other's satisfaction).

Just me being pedantic I guess.

But seriously folks ... it was your reference to a .co.uk domain whilst replying to a possible .eu dispute. I felt we needed to clarify that the .uk DRS is not the same kind of animal as the .eu ADR, and whilst I understand you referred to a civil court case, I just wanted to clarify that .eu disputes would not be handled in the same way as .uk disputes might.

This is the comment that started it all:

Regards
James Conaghan
[PAB Member]

Beasty

Ditto!
In truth that forum choice vests almost exclusively with the Complainant.

I refered to a High Court case dealing with the same 4u extension. I didn't mention the DRS - and from the initial post it seems equally open for the complainant to consider either EURid or High Court - so I thought it may be of interest. The co.uk and .eu extensions would be unlikely to have any material effect, if it were to go to Court.

Jac

Stop calling me Ditto!

I see what you mean but surely (in reality) the respondent has choices too?

Regards
James Conaghan
[PAB Member]

Beasty

According to the Court List - the Appeal judgment in phone4u.co.uk is due to be handed down tomorrow morning. It was pulled from the list a couple of months ago - but this time I think we may be about to see what the Court of Appeal think about this case and - depending on which points were argued at the appeal - perhaps some wider domain name legal issues.

Beasty

Not really. Apart from s21 of the TMA - available only if the Complainant has been careless in any early letters - and alternatively some sort of "nuclear" attack on the fairness etc. of the Nominet contract - I can't see how a Respondent can choose the Courts over the DRS if that is where the Complainant has chosen to fight first.

In fact the itunes.co.uk case seemed to make it clear that - once started - the Courts wanted to see all stages of the DRS finished (including the Appeal stage) before they would consider a Judicial Review.

In practical terms all the choice regarding forums lies with the Complainant. I don't think that is very fair; and it is even less fair when they can "forum jump" if they don't get the result that they want in the first place. Unlike conventional ADR/arbitration, the DRS does not require the parties to relinquish (or at least heavily restrict) their right to later go to Court on the same matter. It is therefore an Additional - not Alternative - Dispute Resolution when fighting a well finananced and determined opponent.