RE: [wg-b] Second Circuit on First Amendment Analysis of DomainNames

["Roeland M.J. Meyer" <rmeyer@mhsc.com>]

> From: owner-wg-b@dnso.org [mailto:owner-wg-b@dnso.org]On Behalf Of Mikki
> Barry
> Sent: Friday, January 28, 2000 9:00 AM
>
> >In the context of our discussion of exclusion of the form [famous
> >mark].[tld] (and not [any other mateiral plus][famous mark].[tld]), the
> >following language, in my opinion, suggests that there is virtually no
> >scenario where [famous mark].[tld] would not be treated as a source
> >identifier (and therefore an exclusion would be appropriate).
>
> Oh really?  Regardless of the gTLD?  I find that rather overreaching,
> especially if the claimed "famous mark" is something like "blue"
> (claimed by Blue Cross and Blue Shield) or "pink" claimed by Owens
> Corning, or "apple" claimed by both Apple Records and Apple computer.

Actually, in the case of the Apples, they reached an accomodation over 15
years ago. But, your point is good. That the Apples reached a settlement
before even getting to court doesn't set any precedents and should not be
construed as such.

> The fact pattern in Planned Parenthood included actual confusion
> based on the web page itself, not simply the domain name.  In the
> Planned Parenthood case, commercial use was also found.

The confusion in the web-site is as much a part of confusion in what their
web-site is supposed to do. I see it again wrt CHRISTIANITY.COM. They are
building a web-site but really don't know what they are going to do with it
(yes, I have inside poop). It is supposed to be a destination site (as
opposed to a portal), but the focus isn't there. At that point, I submit
that it is simply a source identifier.

This is where legal systems and marketing strategies are going to collide,
methinks. What is a source identifier today becomes a brand tomorrow and
vice verse.