Re: [wg-b] "Oops" domains

["Martin B. Schwimmer" <martys@interport.net>]

The protection is not against the clumsiness of typists but against those
who would seek to profit from the clumsiness of typists.  A key motivation
of the counterfeiter and infringer is to prey on the "imperfect
recollection" (and in this case, imperfect typing) of the consumer.  You
could look up that term.  A great deal of bad faith usage of a mark relies
on small deviations from the mark in question in the hope that the consumer
will not notice (confusion).

Again, we are not talking about an expansion of the law - recently a
district court ruled that the domain name wwwpainewebber.com (sic - the dot
was missing after the www) infringed the mark PAINE WEBBER.  

Hoeever, as to the larger point, whether mis-typings should be covered by
an exclusion, if one were to list all the possible mis-typings of a makr
(or more importantly all the "pseudo-marks" for a mark (those marks which
are not identical to a mark but may be visually, phoneticaly or
connotatively similar, as N-R-G, energee, N-ergee and N-R-Gee are for the
word ENERGY) we see the limitations of the exclusion process.  Clearly the
exclusion cannot cover all pseudo-marks (for the reasons stated belwo and
for others) - only an IDENTITY-exclusion is feasible - but an identity
exclusion is of limited utility.

In other words, trademark owners are still going to need the UDRP.

So is the exclusion process worth the effort?





At 10:52 AM 9/3/99 -0400, you wrote:
>
>
>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.
>
>
>
>
>

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