[ga] Re: [ga-udrp] Background Documents

[Jefsey Morfin <jefsey@wanadoo.fr>]

Dear Sotiris,
evidence is the most difficult for us to make accepted. Too simple.
TMs, names, DN, street numbers are here to prevent confusion. Now who can 
get confused? IP people say "lawyers", we say "users". They say let lawyers 
decide. We say let users decide.

Please scrap the UDRP and the like. And when there is a conflict, let 1000 
randomly chosen people decide between the plaintif and defendent sites: 
which one addresses what they expected.

Would the Mont Blanc mountain to be renamed because there would be an UDRP 
between the pen maker and Nestlé?

Questions:
1. Is there a possible conflict: has Madonna registered Madonna in the 
on-line class before the person registered madonna.com? (So she shown she 
was interested)
2. who is the world considering as the least confusing DN Holder for 
madonna.com?
3. who is to pay for that buth the one who prevents madonna.music to exist?

What have US lawyers to do with this?
Jefsey






On 05:42 03/07/01, Sotiris Sotiropoulos said:
>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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