[ga] Re: Candidate positions
Perhaps we need to be clear first what a bad
decision is re 'identical or
confusingly similar', before we start counting. If trademarks are being used as the basis of this whole thing (identical or confusingly similar to an existing trademark), then perhaps we can look at what trademark law says about 'distinctive'. If an expression is sufficiently different from pre-exisiting trademarks to be acceptable for registration as a word mark, then its use as a domain name surely cannot be confusingly similar to an exisiting trademark. It cannot simultaneously be acceptable as a new trademark and unacceptable as a domain name. To take a very hypothetical example, if 'don' is registered as a trademark, then 'snowdon' could still be registered as a distinctive mark, so the domain name 'snowdon' would not be confusingly similar to the mark 'don'. An argument to the contrary would result n a bad decision. Tata would have lost using such a principle. (Of course, under the national law of many countries, certain terms can never be trademarked, regardless of distinctiveness and pre-exisiting registered marks, a major problem for doman owners who wish to protect their position...) Where there are multiple trademark registrations for exactly the same word (eg there are dozens of trademarks for London as a 'word and device' mark around the world), there can be no claim of exclusivity (and in fact in the UK and the US I believe such registered marks are obliged to include such a rider, though in many other countries they are not). Here the trademarks holders (any of them) cannot argue that they have any rights to prevent anyone (including domain registrants) from using the term, as it stands or within a longer expression. Their registration protects the exclusive use of a device (design) which includes the non-exclusive use of the word within the device, as far as I'm aware. I would call any decision that argued otherwise a bad decision. Louise ----- Original Message ----- From: Dave Crocker <dhc2@dcrocker.net> To: James Love <love@cptech.org> Cc: <ga@dnso.org> Sent: Friday, September 01, 2000 7:53 AM Subject: Re: [ga] Candidate positions on UDRP > At 02:02 AM 9/1/00 -0400, James Love wrote: > >the WIPO panels are making bad decisions on the issues of what is > >"identical or confusingly similar," or if they are as concerned as I am > >that WIPO panels are taking away generic names from domain holders. > > > Please provide the statistical basis for claiming that there is a pattern > of bad decisions. Is it one percent out of all the > decisions? Two? Ten? fifty? > > d/ > > -- > This message was passed to you via the ga@dnso.org list. > Send mail to majordomo@dnso.org to unsubscribe > ("unsubscribe ga" in the body of the message). > Archives at http://www.dnso.org/archives.html > > |