[cctlds-comments] WIPO ccTLD Best Practices

  To: cctlds.mail@wipo.int
  Subject: [cctlds-comments] WIPO ccTLD Best Practices
  From: henry.olsson@justice.ministry.se
  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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