Re: [wg-b] Protections for Noncommercial gTLDs.

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

Thank for actually reading a case. Now we can discuss law.  The Brachs case
illustrates the limitation of fair use in that the defendant may not use
more than what is reasonably needed to describe the plaintiff or
plaintiff's goods or services.  In this case, the use of the logo was not
necessary and was found to be infringing.

Similarly use of an employer's name as part of a domain name is more than
is necessary to fairly describe the employer.  If the Teamster's needed to
describe GM, they do not need to re-name themselves GM to do so.  If they
have dispute with GM and want to set up a website, they will most likely
not be permitted to name it gm.union, especially when it can be shown that
they can communicate through a website such as teamers.org/gm/ or
teamsters-vs.gm.com or even organize-gm.union.  And that's why the Brachs
case suggests that gm.union will likely to be infringing.  

I'm not the one saying .union is non-commercial and should be exempt from
trademark protection.  It's not my burden to distinguish my cases on your
behalf.

And I don't feel particularly guilty about asking lawyers who make legal
conclusions to support those conclusions.  I'm not keeping them from
researching the cases.  In fact, if they are lawyers and were hired by
non-commercial organizations to represent them in this debate, they are
kind of obligated to do their homework.




At 02:38 PM 4/17/00 -0400, you wrote:
>From: Martin B. Schwimmer <martys@interport.net>
>Subject: Re: [wg-b] Protections for Noncommercial gTLDs.
>
>
>> The use and ownership of generalmotors.union by an entity not connected
>> with or endorsed by General Motors may  be held to be an infringing use.
>> Brach van Houten Holding v. Save Brach's Coalition, 856 F. Supp. 472, 31
>> USPQ2d 1786 (ND Ill 1994).
>
>Mr. Schwimmer obviously didn't read the case that he cites here, and this is
>precisely what is often disappointing in discussions where lawyers throw
>around citations without any discussion of the case, as if the mere citation
>meant something.
>
>In fact, the case explicitly states the OPPOSITE of what Mr. Schwimmer says
>it does.
>
>In particular:
>
>"The Complaint and instant motion do not seek to prevent the defendant from
>using the name 'Brach's;' they seek only to enjoin the defendant's use of
>the Brach's logo." 31 USPQ2d at 1789.
>
>So, Mr. Schwimmer, when the day comes that domain names are replaced by
>domain logos, perhaps your cite would have some relevance in connection with
>the use of names, which are what is under discussion here.  Otherwise, your
>attempt at pulling our collective leg here falls flat on its face.
>
>And, if it is not clear enough to you or anyone else, the order from the
>case (at 1790) specifically goes out of its way to state:
>
>"[W]e will issue a preliminary injunction enjoining the defendant from using
>the Brach's logos.... This injunction does not prohibit the defendant from
>using the word 'Brach's'."
>
>Now, if you are going to demand citations when someone disagrees with you,
>it would be extraordinarily helpful if you didn't mis-characterize the ones
>you provide.  This would be particularly helpful given the fact that there
>are few other participants in this discussion who just happen to have the
>entire corpus of USPQ and USPQ2 a few feet away from their desks.
>
>
>
>
>

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