Dear Mary and all, Thanks for this. some comments below. Best KK From: Mary Wong [mailto:[log in to unmask]] Hi and sorry for chiming in late. Thanks to Konstantinos for providing a very thorough set of comments; here are just a few minor observations: - on p. 2 there is a sentence in bold that says "The very fact that the registrant has responded automatically demonstrates good faith". I think this is putting it too strongly - would it be better to say that the fact a registrant responds can be an indicator of good faith? I am not sure I agree with you on this. What we are basically doing is following the rationale of the UDRP and the interpretations that have been provided through the UDRP decisions all these years. For UDRP panels, non submission automatically equates to bad faith. If that is what is therefore happening then why not considering submission as ‘good faith’? - still on p. 2, I think the community may understand Default somewhat differently, i.e. not as meaning only "failure to respond in a timely manner", but more broadly as including failure to conform to requirements. Can we not just say that it would be unfair to bump the dispute to Default status simply for filing errors and omissions? Additionally, I would suggest removing the phrase "which in any case are part of human nature" as I don't think it necessarily strengthens the point already made. The community is mistaken and I don’t think that anyone would view default like this, despite the efforts of the trademark community to expand its interpretation. - still on p.2, in the following paragraph, when discussing the STI's decision not to accept an expansive interpretation of "default", I suggest that a more appropriate term than "wilfully dismissed" might be "consciously rejected". - on p. 3 I actually don't agree with the use of the phrase "safe harbors" as it does not seem to me to accurately describe the circumstances being considered. As such, I'm not sure I agree that using the word "defense" instead is necessarily "weaker", and in the context of this particular page of our comments seems to imply that by using the words "safe harbor" rather than defense will therefore imply a "binding legal obligation" on the Examiner. May I suggest saying, instead, something along the lines of the need to ensure that a respondent's right to demonstrate the registration is legitimate and in good faith? (I can't recall the Nominet wording but I don't believe they actually use the phrase "safe harbors" either.) Mary we already have incorporated what you are suggesting. The Safe Harbors are intended to provide additional protection to individual users rather than limit this protection to just the possibility of domain name holders to demonstrate rights and legitimate interests. In the law context, the word defenses means that even if for instance there is fair use of the domain name, the examiner will still be able to exercise discretion in deciding whether to accept this defense or not. The word Safe Habors leaves no room for such discretion. - on p. 5, instead of "trademark heavens" do we mean "trademark havens"? (BTW, as some of you know, I am uncomfortable with distinguishing between countries that conduct substantive review and those that don't, but can accept that I am in a minority of one on this). Thanks for pointing this out and I will correct it. The paper is not suggesting that we have to distinguish between jurisdictions that conduct substantive review and those that don’t. There is a huge debate about this and even the STI was split. Rather what it seeks to do is to draw the attention of the community to the possibility that ‘trademark havens’ might be created which will complicate things and create more problems. - finally, and more substantively, can we add something (on p.3 when discussing Abuse of Process) to urge the staff to develop, in consultation with the community, clearer guidelines as to what is meant by "deliberate material falsehood"? Sorry I haven't had the bandwidth to do a more thorough job in contributing to the comments, but I hope these observations help. Best, Mary Mary W S Wong Professor of Law & Chair, Graduate IP Programs Franklin Pierce Law Center Two White Street Concord, NH 03301 USA Email: [log in to unmask] Phone: 1-603-513-5143 Selected writings available on the Social Science Research Network (SSRN) at: http://ssrn.com/author=437584
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