|Subject:||[cctlds-comments] WIPO ccTLD Best Practices|
|Date:||Thu, 15 Mar 2001 07:20:47 +0100|
Name: Henry Olsson Organization: Ministry of Justice, Stockholm Position: Special Government Adviser
1) I agree with the contents of footnote 1 on page 9 of the Best Practices Paper about the bad faith requirement 2 In addition, I question the need for three-member panels; not much value is added compared to what a sole panelist can achieve and it adds considerable practical complications in terms of organization of the work. Therefore, I personally avoid serving on such panels 3) A practical problem which has arisen is the determination of when a trademark right actually exists in cases where there is no registration. First, it is not easy to determine in an administrative proceeding if a rights exists or not on a legal basis other than registration (for instance, presence on the market, or other legal concepts9. Secondly, the borderlines between trademarks and trade names is frequently also problematic in such cases. Therefore, there could be some merit in requesting registration as a basis for invoking a trademark right in a domain name dispute (I leave aside the question of where the registration should exist, which is discussed on page 10 4) Finally, this problem of the legal basis for the trademark right invoked leads me to question the wisdom in the rule that the panelist should not be of the same nationality as one of the parties. Especially when a non-registered trademark right is invoked, a panelist from that country of often the only one who is actually in a position to determine with some degree of certainty whether such a right exists or not.
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