Re: [ga-udrp] Re: International TMs

["NameCritic" <watch-dog@inreach.com>]

It's just one of many points that weaken the case for TM Holder's belief
they have some real right to a domain name. I agree about famous marks like
Coca-Cola. They are most likely Tmed in countries that are part of the
Treaty. But with the UDRP they are classifying Bob's liquor staore on the
corner of 12th and Elm in backwater, New Jersey, as some famous mark and
allowing companies with let's just say, less than famous marks more
protection than they should.

TM's have classes. That is why more than one can exist. Until more tlds are
created that put domain names in classes as well, TM's don't apply and are
not similar.

To properly protect Coca-Cola's TM there should be a .softdrink. They would
have clear rights to coca-cola.softdrink. No question. No need for
arbitration.

But until coca-cola starts to produce a product called a com, there is no
clear violation with the domain name existing seperately from the softdrink
company of the same name. That is if the owner of coca-cola.com doesn't sell
softdrinks.

Coca-Cola isn't the best example because they do have what is known as a
famous mark and different rules apply.

But JCrews and Company aren't Coca-Cola and are not that famous. They got
crew.com due to the UDRP. Explain their right to that generic word.

Is Madonna more famous than the Madonna in the church?

Is Beverages & More! famous? They only got the mark due to the ampersand and
exclamation point yet got the domain BeveragesAndMore.com from the owner
through the UDRP. Their reason for thinking the domain should be theirs?
That they couldn't use the ampersand and exclamation point in a domain name
therefore the one without it should be theirs. Even though their mark is
specifically issued due to the use of the two punctuation marks. The words
by themselves are too descriptive and would not be given a TM in the first
place.

Arbitrators found that a City in Canada was not entitled to the domain name
that is the same as their town, but Barcelona.com WAS given to the city and
now WIPO is proposing that is correct to do. What is Uniform about those two
decisions?

Again, TMs are filed in specific classes and do not have the right to all
uses of the words contained in the TM, therfore have no rights to the domain
name unless it is being used in commerce in the same class as the TM was
filed in. This is fact. This fact is being ignored and TM holders are being
given more rights by the UDRP and WIPO than the USPTO gives them. What gave
ICANN or WIPO the authority to usurp TM Law?

Did the DoC in their contract with ICANN say they could alter TM Law to suit
their constituencies? If so then two US Government Entities are at odds with
each other and it STILL has nothing to do with domain names having any
rightful user other than the first one to file the name.

The exception is when the domain name IS used in commerce to compete or
infringe upon the rights of the TM Holder. How the domain is used can be an
infringement. The owning or registering of the domain in itself is not. WIPO
has found that not having used the name in commerce is an infringement. The
opposite is the case. Only when used can it be a violation.

If a competitor filed a name to warehouse it so you could not have it, this
would be considered unfair business practices and falls under different law.

Even courts have recently been ruling on cases that if the domain name
holder COULD someday, IF they were a bad person, use a domain name to
infringe upon the rights of a TM Holder then the domain should be taken away
and given to the TM Holder.

I COULD kill someone with my steak knife. Doesn't mean you should put me in
jail for murder because IF I decided to I could become one.

Face it. The Intellectual Proprty Constituency has pulled the wool over
everyone's eyes. They have used the media, ICANN, the UDRP, and WIPO to do
so. They have changed TM Law for online purposes without ever having to get
any legislation passed. Gotta hand it to them. They pulled it off and now
they defend their actions as if it was all legitimate and was done to
protect the consumers. Yeah, right.

Is that why the Intellectual property Constituency is fighting against the
addition of both an Individual's constituency and a Domain Name Holder's
Constituency? Do they feel it is in the user's best interest NOT to be
represented or have a voice within the DNSO? Are we to just trust you to
take good care of us? Is it that you feel you know what is best for us
sheep?

Or is it you feel threatened by those that disagree with you? Do opposing
opinions scare you? They should. We are not going away. What you did worked
in the short term. In the long term the users will win. That is why you
prolong this and work against the creation of an IC and IDNHC IMHO.

Bottom up Consensus. Where is it? Tansparency of Actions. Where are they?
Fairness. Where is it? Stability. Where is that? Unity. Where is it?
Uniformity. Where is that?

Those are all words used to describe the processes of ICANN, the DNSO, the
Names Council, the UDRP, and WIPO. Why is it then we don't see those as
examples of how this has all been done?


Chris McElroy aka NameCritic


----- Original Message -----
From: "Eric Dierker" <eric@hi-tek.com>
To: "NameCritic" <watch-dog@inreach.com>
Cc: <ga-udrp@dnso.org>
Sent: Wednesday, May 23, 2001 5:32 PM
Subject: [ga-udrp] Re: International TMs


> You have to be careful when sending me an email wherein you claim to make
> arguments which are no more ridiculous than ....
>
> I believe to really understand international treaties and trademarks you
need to
> get into bilateral trade agreements first and then go to the WTO charter
and
> members. Then you have to take everything you just read and throw it out
the
> window. Real enforcement of foreign trademarks comes from a desire to do
further
> trade with the country which is the origin of the trademark.  The U.S. is
the
> largest open economy consumer in the world. If you want our trade you
enforce
> our trademarks.
> The emerging economy of the Socialist Republic of Viet Nam and the U.S.
have a
> signed bilateral trade agreement that has yet to be ratified by both sides
> congress/Assembly. Even before that goes into effect you can now get
actual
> effective enforcement of U.S. Trademarks there.
>
> Now you should know that the 62 page of text and the 62 pages of
appendixes in
> that trade agreemnent nowhere nohow mentions domain names. As a matter of
fact I
> do not remember a single mention of the word Internet.  But as someone who
is
> working on the internet policy for Vietnam I can gauran-damntee you that
if you
> try registering cocacola.vn when it becomes available to the outside world
in
> the next few weeks we will enforce any rights cocacola may assert to that
name.
> However I have a high level of confidence that if you register coke.vn you
will
> be able to keep it. They will enforce a true trademark but not bend over
> backwards to pander to American mega-corps.
>
> My point is that you cannot apply logic, or even the rule of law to the IP
> versus domain holder rights arena you need to apply economic power
politics.
> Here I believe a study showed that the vicious attacks and reverse
hijacking of
> fair names which may also be trademarked hurt the companies more in PR
than the
> name was ever worth. Public opinion does effect these big companies. I am
> working with a group to design and market a UDRP which will be very public
and
> on an internet pro and con list type format.  The complaints and responses
will
> all be open to public comment, in fact public comment will be a factor in
> determining the outcome. The judges and the "counsel" will be right off
the
> lists we all participate in. Shoot you may even be chosen as someones
advocate
> with Corliss, Williams and Walsh sitting as the judges and me as the
opposing
> advocate. Yes it will cost the loser a little money to help fund the site
and
> help developing countries provide IT schools.
>
> Sorry too long,
>
> NameCritic wrote:
>
> > Something I find interesting. I wrote to get an International Trademark.
> > This is the response.
> >
> > "It is possible to seek an International Trade Mark Registration but as
an
> > American company/citizen, you would be unable to obtain such a
registration
> > because America is not yet a signatory to the specific international
> > agreement. "
> >
> > Domain Names resolve addresses which are International in nature. If US
> > Trademarks are not International Trademarks through the US'
> > Non-participation in the Treaty, then how can Domain Names be infringing
on
> > said Trademarks. The Trademarks that do NOT have International
Protection do
> > not apply to Domain Names. Then it would go in order of importance.
> > International Trademark, Domain Name, US Trademark.
> >
> > Some US Trademarks are infringing upon domain names and the trademarks
that
> > are too similar should be taken away and given to the domain name holder
> > IMO.
> >
> > That argument I just made is no more ridiculous than the one US TM
Holders
> > make when saying they have a "RIGHT" to domain names that are similar to
> > their US Trademark.
> >
> > Chris McElroy aka NameCritic
>
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