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Re: [ga] More UDRP Proceedings
Ellen and all,
Good points here Ellen, and ones that have been raised several
times in the past, although possibly forgotten of late.
Ellen Rony wrote:
> Bret, since you are an attorney, perhaps you can explain the purpose of the
> "use" provision of a trademark and why the same notion is appropriate for
> domain names. IANAL, but as I see it, a trademark registration basically
> blocks out any other party from using the name in a specific commercial
> context and geographical area. With only 42 classes of goods and services,
> I suppose the rationale for this proviso is that sitting on a trademark
> registration without using it might be detrimental to commerce in that
> class of goods or services.
>
> But domain names can be acquired for all manner of uses--one time events,
> bully pulpits, sales of goods and services, self-promotion, advocacy,
> student projects, graphic design.... I'd just like to get a better
> understanding of the use it or lose it rationale here. Would "hello" or
> "under construction or a photograph (see Toeppen v. Panavision) constitute
> use? Who would police this? "Continuous" use is another concern.
> Servers go down; people move and re-establish their lives in new locations
> with different ISPs. S--- happens. And websites change. One that was not
> infringing five years ago may have new material that clearly crosses the
> trademark infringement line. So, I don't domain registrants merit
> protection because of x years of unchallenged, continuous use, but someone
> who invokes the UDRP five years down the line better have very good reason
> for doing so.
>
> Bret Fausett wrote:
>
> >Since I was making an analogy to trademark law, I'll carry it out a little
> >further. Generally, under U.S. law, you use trademarks or you lose your
> >rights in them. If one were to make domain name registrations incontestable
> >after five years of continued, unchallenged use, I wouldn't think it would
> >make a difference whether that five years had been spent using the domain
> >name for web-based services, e-mail services, or any other use of the DNS.
> >
> >What doesn't strike me as a "use" though -- for these purposes -- is simply
> >registering a domain name and thinking about what you're going to do with
> >it. Of course, there's no reason that you can't register a domain name and
> >sit on it. But I wonder whether just sitting unnoticed for five years should
> >convert your registration to an incontestable one. I wouldn't think so
> >(though I haven't thought it through very much).
> >
> >This is an interesting idea. I wonder if there's something worthwhile here,
> >and I'm very glad you raised it.
> >
> > -- Bret
> >
> >Ellen Rony wrote:
> >> Ok, let's explore this notion of unchallenged use. If I get a driver's
> >> license, am I required to drive? If I buy a book, can it sit on my
> >> bookshelf for years unread? If I register for a fictitious business name
> >> in my state, must I actually employ the use of the name? Must an attorney
> >> who passes the bar actually go out and get clients within a prescribed
> >> period?
> >>
> >> What presumptions would support rights in long, continuous, unchallenged
> >> use over simply holding on to the name registration? If someone has the
> >> concept for a new business, the domain name may be registered well before
> >> the business is implemented online. I am certain your notion is presented
> >> with regard to cyberhoarders who stockpile domain names for future sale,
> >> but it would hurt those who have purposeful, but unfullfilled business
> >> plans.
> >>
> >> And this gets to the notion of the domain name as property. If I register
> >> the name, set up the servers and pay my renewal fees in a timely matter,
> >> what legal justification obligates me to activate the name in a website or
> >> email account within a set period of time?
> >>
> >> I hope the public record will show us exactly why a UDRP proceeding have
> >> been launched against a five-year-old domain name registration.
> >>
> >
> >> "Bret A. Fausett wrote:
> >>>
> >>> You raise an interesting point. As you probably know, under U.S. law, some
> >>> trademark registrations become incontestable after a period of time. Given
> >>> the amount of money now going to build an online presence (according to one
> >>> recent study the *average* cost for a new e-commerce site exceeds U.S.
> >>> $1,000,000), protecting a domain name after a similar period of continuous
> >>> and unchallenged use might make sense.
> >>
> >>> While Harald is probably right that, as a practical matter, a long
> >>>period of
> >>> use makes the challenger's task in a UDRP proceeding daunting, shouldn't a
> >>> domain name owner have some certainty after a long period of use that their
> >>> name will not be taken away?
> >>>
> >>> We talk a lot about stability of the Internet. I would think this goal
> >>>would
> >>> be furthered by giving domain name owners an incontestable right in their
> >>> name after a period of long, continuous, unchallenged use.
> >>>
> >>> -- Bret
> >>
> >>
> >>
> >>.............................................................................
> >>Ellen Rony ____ The Domain Name
> >>Handbook
> >> Co-author ^..^ )6 http://www.domainhandbook.com
> >> +1 (415) 435-5010 (oo) -^--
> >> erony@marin.k12.ca.us
> >> W W
> >> DOT COM is the Pig Latin of the Information Age
> >> 1999 Cyberserk Awards: http://www.domainhandbook.com/awards99.html
> >>
> >>.............................................................................
>
> ............................................................................
> Ellen Rony ____ The Domain Name Handbook
> Co-author ^..^ )6 http://www.domainhandbook.com
> +1 (415) 435-5010 (oo) -^--
> erony@marin.k12.ca.us
> W W
> DOT COM is the Pig Latin of the Information Age
> 1999 Cyberserk Awards: http://www.domainhandbook.com/awards99.html
> ............................................................................
Regards,
--
Jeffrey A. Williams
Spokesman INEGroup (Over 95k 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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