> From: James S. Tyre [mailto:jstyre@jstyre.com]
> As I said here at the time, I do not agree with John's analysis; but it
> isn't black and white.
Please make your case.
In brief summary (I'm tired).
John's analysis (as I recall, I have not just gone back to look at it) was
that it was black and white, but it isn't, the mere fact that a trademark
is used in a domain name is not, by itself, conclusive. It is only one
factor to consider, there are many, many cases that say that, as he would
agree. Here, probably the most important (but not conclusive) factor in
favor of the current name is the express recognition of it by the
ALAC-predecessor (forgive me for not remembering the acronym, there have
been so many). The knowledge and actions of an agent (ALAC-predecessor)
acting within the scope of authority are charged to the principal (ICANN).
The passage of time also works in our favor, this organization was much
newer then. Not in a strict statute of limitations sense (yet), but under
the concept of laches. The longtime existence of sites such as ICANNwatch
and Bret's ICANN blog also work in our favor, though, contrary to what some
have said here, those facts are not conclusive either.
I don't know how many such cases John has handled in comparison to how many
I have, let's just say that each of us has experience in the field, this is
a case where informed, reasonable people can differ.
Which leads back to a point in my prior post - even if I am right that it
is more likely than not that this organization would prevail, the cost, the
risk factor and so forth are not to be taken lightly.
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James S. Tyre mailto:jstyre@jstyre.com
Law Offices of James S. Tyre 310-839-4114/310-839-4602(fax)
10736 Jefferson Blvd., #512 Culver City, CA 90230-4969
Co-founder, The Censorware Project http://censorware.net
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