Re: [ga-udrp] Background Documents

[Sotiris Sotiropoulos <sotiris@hermesnetwork.com>]

Eric Dierker wrote:

> Can one of you fine people give me a good argument for the UDRP that is not
> strictly for the benefit of the IP constituency.  I for one like existing laws
> and would like to see them enforced and if an UDRP did this I would be all for
> it, otherwise it looks like a mechanism for circumvention of Sovereign and
> legitmate laws.

Here's my attempt.

Citation from S 1255 IS, Anticybersquatting Consumer Protection Act.:

SEC. 2. FINDINGS.

Congress finds that the unauthorized registration or use of trademarks as Internet
domain names or other identifiers of online locations (commonly known as
`cybersquatting')--

(1) results in consumer fraud and public confusion as to the true source or
sponsorship of products and services;

"the true source or sponsorship"... how would we apply this in the Madonna.com
case?  There are hundreds of millions of people on the planet who know Madonna as
the mother of Jesus Christ.  For two millenia the name has been a popular name.
This relatively recent phenomenon `popstar' lays claim to this domain name in a
domain name dispute, and she wins practically out of hand.  I have not seen any
evidence presented to demonstrate that the original registrant made any `bad faith'
overtures to the Madonna popstar.

Ultimately ( as my poor understanding of legalities is limited), I dimly grasp that
the essential claim in a trademark is that the assignee made the mark famous through
their energy, activity, and investment.  Here is a clear case in which this is not
so, in fact, the exact opposite holds.  Madonna (postar) made herself famous largely
by using and/or lampooning the catholic Madonna, and by employing that already
famous name.  Essentially, the popstar provided us with her version of a possibility
for what the name could be used for... an interpretation.  Along came the Internet
Age...  and as the scientists tell us, when the Ice Age occurred many millions of
years ago, the dinosaurs were killed off as a result. The road was thus paved for
humanity.  Well, it's painful when society's means of Information distribution
changes.  Does anyone here remember the advent of the printing press and the changes
it brought to human society?

(2) impairs electronic commerce, which is important to the economy of the United
States; and

>That's rich!  The billions of US Dollars that were made through domain name hype
and .com frenzy on the US STOCK MARKET actually boggle my imagination (and I have a
pretty rich imagination).

(3) deprives owners of trademarks of substantial revenues and consumer goodwill.

>If a trademark is property, and a domain name is equated wth a trademark, then a
domain name is also property, right?  Perhaps there is basis here for a definition.

>Now, if there was hard evidence (that was not manufactured by a creative [il]legal
department in some large law firm) to prove the original registrant went to the
popstar to sell her the name, I would agree with a UDRP ruling in Madonna's favour.
On the other hand, if there was no such evidence, then I would support the original
registrant's right to use the name as they saw fit, and a properly functioning UDRP
would recognize the legitimacy of the original registrant's claim.  Nobody stopped
Madonna (or her handlers from educating themselves about the new technologies known
as the Internet DNS... someone else got there first a la social Darwinism.  A fair
UDRP could send a message.

>I should add that I consider the WIPO intiative to include famous geographic
indications and personal names under an expanded UDRP to be the most ludicrous and
grasping thing I've ever heard of, but with some and such people around, I'm sure it
won't be for long...

Sincerely,

Sotiris Sotiropoulos

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