Re: Open letter to Kelsey Grammer: the Internet is not a trademark-free zone

On 11/20/98, Daniel J. Schaeffer <daniel_schaeffer[_at_]kirkland.com> wrote:
>
> On 11/19/1998, Daniel J. Schaeffer <daniel_schaeffer[_at_]kirkland.com> wrote:
> >
> > So the relevant date of the registration is the "effective date"
> > of the valid and subsisting trademark registration owned by the
> > complainant. There is no discussion of "first use" anywhere in
> > the policy. (I suppose you could argue that "effective date" of
> > a registration is the date of firsts use, but I see nothing in
> > NSI's policy to suggest that interpretation.)
>
> Mea culpa. When I posted this message, I had not looked carefully at
> NSI's FAQ regarding what "effective date" means. Guess that shows me.

Don't feel bad. NSI is slippery about this sort of thing. NSI announced its February 1998 policy in January 1998, and it amounted to its fifth policy in four years. That February 1998 policy contained the undefined term "effective date". Within a week, two different high-up NSI officials were quoted as giving two different meanings to this term. One said it meant "filing date", the other said it meant "date of first use". The latter is, of course, silly since most of the countries of the world have no concept of "date of first use" in their trademark registrations.

Then a couple of months ago NSI very quietly placed the FAQ on its web site, and for the first time, gave a definition of "effective date". It was defined as... well, it says that for a US trademark registration, it is the earlier of the date of first use or the filing date. And it says that for trademark registrations from countries other than the US, NSI will wait until the registration is presented and will then decide what the "effective date" is.

Annoyingly, shortly after posting the FAQ NSI announced that it did not represent a policy change at all. Apparently it is NSI's view that from February 1998, any member of the public should have been able to discern from the wording of the Policy that "effective date" means "the earlier of the date of first use and the filing date". This despite the fact that two high-up NSI officials were unable to reach the same understanding of the meaning of the term.

Carl Oppedahl
<carl[_at_]oppedahl.com> Received on Mon Nov 23 1998 - 14:46:24 GMT