I appreciate your comments especially your penultimate one

Phil Wright


-----Original Message-----
From: Adam Todd [mailto:auda§todd.inoz.com]
Sent: Friday, 5 July 2002 10:31 PM
To: dns§lists.auda.org.au
Subject: RE: [DNS] Very Concerned RE Trademark and IP issues with
'Generic Auctions'

>The grounds of the appeal made known to Melb IT and auDA, included Common
>Law Mark (Exact match to the Trading Name of the Pty Ltd Company that
>naturally enjoys protection against false, deceptive conduct or use of
>matching or similar names anywhere in Australia).

And herein is the problem, yet again, with the old and current policy.  You
don't have "common law mark" in the DNS, because the policy says
"derivative of the name" is acceptable.

You might also note, LONG before you registered your trade mark, the word
"network" has been registered as a trade mark hundreds of times.  All
TOTALLY entitled to the network.com.au domain name under the current policy.

Don't forget network.com Pty Limited, probably your competitor is ALSO
entitled under common law mark.

>used or in general terms. It included expert testimony and the evidence was
>strong and compelling according to a third party IP Lawyer whose
independent
>opinion was sought.

But it is only an opinion.  In every court case, there are at least two
opinions.

>It would also seem that the 'new system' does not yet have a dispute
>resolution policy stated and therefore offers no approach??

Because auDA felt there was no need for a dispute resolution policy and as
Michale Pappas has indicated the system is perfect enough not to require
one - in a hurry.

>Do you have any suggestions of alternative recourse right now, when there
>appears to be no stated policy?

Contact your local member of Parliament!

>Policy under the 'new system', whilst important and of value not only to
the
>DNS system in Australia but also to all registrants of domains, cannot
>extinguish the antecedent rights of Common Law Mark or pending Trademark.

The policy under the new system (or old) is a private enterprise series of
agreements.  It has no legislative process.

As I said before, use a court if you REALLY want your domain name.  Use the
legislation that has been created to give you that right and don't wait for
auDA to wake up - it will take auDA at least two years to realise how far
out of line they are.