Re: [registrars] Cybersquatter CRIMINAL legislation

[Larry Erlich <erlich@domainregistry.com>]

Michael D. Palage wrote:
> 
> Excerpt from NY Times article Bill Would Make Cybersquatting a Crime, June
> 22, 1999 by JERI CLAUSING.
> 
> The campaign to crack down on cybersquatters has moved to Capitol Hill,
> where Senator Spencer Abraham, a Michigan Republican, has introduced a bill
> that would make the practice a crime.
> 
> The proposal introduced Friday would make it illegal to register someone
> else's trademark, and then misuse it to deceive consumers or try to resell
> the domain name for a profit.
> 
> The first conviction would be a misdemeanor; a second conviction could turn
> into a felony. The proposal by Abraham would also give companies the ability
> to recover damages of up to $300,000 for each trademark violation.
> 
> *** Check out the Limitation on Liability Section:
> 
> SECTION 5: LIMITATION OF LIABILITY
> 
> An Internet service provider (ISP) or domain name registrar shall not be
> liable for monetary damages to any person if it
> removes an infringing identifier from domain name server (DNS) service or
> from registration, or transfers it to the trademark
> owner: (1) upon written notice from the trademark owner and (2) in
> compliance with either a court order or the reasonable
> implementation of a policy prohibiting the unauthorized registration or use
> of another's registered trademark.
> 
> This limitation shall apply without regard to whether the domain name or
> other identifier is ultimately determined to be infringing or dilutive.
> 
> COMMENT: I have problems with a statute that provides for criminal sanctions

That's because you are an IP attorney and not
a criminal attorney.  Seriously Michael, is that the only
problem that you have with this? I'm surprised.

> worded in terms of "reasonable implementation." Will the WIPO working groups
> efforts be deemed a "reasonable implementation" ?????

Is it April 1st? (This is not an attack on Michael
but on the news report.)

I will preface this by stating that I haven't read the text of the bill, 
(URL?) but based upon what Michael Palage has quoted above:

1) It would be "criminal" to sell (for profit) "Abraham.com" to Senator
Abraham because there is a trademark on "Abraham". 
Search:  http://trademarks.uspto.gov/access/search-mark.html (for Abraham).

(Of course, anyone who has searched the trademark database knows
that many domain names have trademarks. A ticking time bomb...)

(Same with "Spencer.com" - many matches). I won't even address
the other obvious issues about difference of uses etc. 

2) A trademark owner could reverse hijack the name
after providing "written" notice to the ISP.

3) Now showing on the web:
See http://www.mlb.com and see what happens when
Major League Baseball goes up against Morgan Lewis & Bockius.

Notice the link in the middle of the page to Major League Baseball. 
Major League Baseball HAS a trademark on "MLB". (See trademark database)
Who else (but a law firm or large corporation) 
would be able to sucessfully fight the lawyers representing ML Baseball?

The law firm has kept the name "mlb.com". 

And of course they should be able
to, for what they are using it for. 

But shouldn't that be the same for a 1 person company 
without the funds to pay a large law firm?

EFF People: Is this the way it should be? 

Larry Erlich

http://www.DomainRegistry.com

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