[wg-b] "Oops" domains

[Milton Mueller <mueller@syr.edu>]

Harald Tveit Alvestrand wrote:

> Next question: do we also want to rule out of scope the question of whether
> nisan, niisan and nisssan should be reserved/blocked/actionable if "nissan"
> is found to be a famous mark?

I think we do want to rule that out of scope. That is a can of worms that could
create more disputes than it resolves.

One problem is that in a *global* context these "misspellings" may in fact be
different words or hold entirely unrelated meanings. They might even be trademarked
in another context.

Another problem is that the likelihood of confusion or damage in such cases seems
to be extremely word and culture-specific--so how would a rule be established to
determine objectively which "similar" strings are "similar enough" to deserve
protection? I can only see this being resolved on a fact-finding basis; i.e. in a
court.

Generally, I am uncomfortable with the principle that TM owners deserve global
legal protection against the clumsiness of typists. It is one thing, as several US
courts have ruled, to become frustrated when one cannot find <company> at
<company.com>. It is entirely a different matter to be unable to find it at
<compayn.com>

The only serious issue is when typos lead children or other unwilling users to porn
sites. I think this is a regulatory/civil issue that can be handled best via
litigation.

I undertand the potential for abuse here and have little respect for the people who
attempt to base a business upon typo domains, but I do not think the "damage" to
either consumers or trademark owners is sufficient to warrant the massive expansion
of rights and potential for abuse and conflict that would be created.