Re: [ga-udrp] Background Documents

[Jeff Williams <jwkckid1@ix.netcom.com>]

Sotiris and all,

Sotiris Sotiropoulos wrote:

> 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.

  Good points here Sotiris.  I didn't see any evidence or oral arguments
in the Madonna.com case, which The Popstar Modanna won, that
were similar to these that you provided here.  They should have been
perhaps?  As you may remember or know I argued similarly to what
you provide here in this case on several appropriate ML's.

  It also seems to me, and I am sure the Catholic Church that they
would have the predominant right to Madonna.com.  Yet to my knowledge
the Catholic Church has yet to file a claim.  Perhaps they will at some point,
which will again bring this case into a more dramatic and difficult public
notice.

  Bu how do we address instances such as the Madonna.com case
into a method or policy for a potential redress to the current
WIPO/ICANN UDRP?  Or in some instances, such as famous
TM's, can we?  I am not sure.  This would prompt yet another
question for the survey questionnaire to my mind.  I shall endeavor
to craft one, and than run it by some other legal and lay survey
experts, as well as our staff and than propose it here to add to
the already proposed questions...

>
>
> 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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Regards,

--
Jeffrey A. Williams
Spokesman for INEGroup - (Over 118k members strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
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