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Re: [wg-c] Retraction of previous proposal
Mark,
>>> "Mark C. Langston" <skritch@home.com> 07/29 6:34 PM >>>
On 29 July 1999, "Rita M. Odin" <OdinR@arentfox.com> wrote:
>>While the mere registration of a conflicting domain name does not per
>>se const itute infringement, the use of a conflicting domain name can
>>infringe or dilut e a trademark/service mark. Whether or not
>>property rights attach to a domain name is strictly dependent u pon
>>the manner in which the domain name is used. If someone uses the
>>domain n ame in a trademark/service mark sense (i.e., it is used in
>>the advertisement o f goods/services by displaying it, e.g., on the
>>website) then it becomes a tra demark/service mark. Clearly, domain
>>names and trademarks/service marks are closely related, especially in
>.light of the method of use employed by many bus iness on the
>>Internet.
>So what you're saying Rita, is that the issue is not one of .needing
>to police the registry database, as Kevin's been arguing, but >instead
>the much more difficult one of discovering how the name is being >used
>over time.
>Correct?
No, not correct. Registration of a domain name invariably results in use of a domain name (unless the registrar is a cybersquatter intending to horde the domain name in an effort to extract payment from another party and/or frustrate the business interests of another party by preventing that party from registering a domain name that would be useful to it.)
>So having access to the registry databases isn't really necessary, >since
>you could just employ a web-crawling program of some kind to >hunt down
>web pages that may infringe.
Once again, an incorrect assumption. Access to the registry databases is essential to allow the legitimate owner of IP rights to enforce its rights against infringers and pirates. If an infringer can hide its identity behind a claim of privacy, the infringer is essentially free from prosecution or lawsuit. How can an IP owner file an action or a criminal complaint if they can't identify the person/entity behind the infringement? IP owners are not asking for a free ride . . . they are merely asking to be given access to information that is necessary to police their rights. Using a webcrawler to find the sites is not the problem, finding out who is responsible for the websites in order to hold them accountable is.
>This would certainly cost time, but I don't see how the very act of
>policing is suddenly as expensive as some have argued.
The cost of policing is more than merely finding out what websites infringe upon your rights. That's just the first baby step. Stopping the infringement (by litigation, negotiation, etc.) is the expensive part of policing. If you have ever been involved in a lawsuit, you would recognize that fact.
Every gTLD that is created creates the opportunity for multiple infringements on the SLD level (slight variations can be made to a TM, which variations will still cause consumer confusion even if they are sufficient to allow the domain name to be registered (i.e., the addition fo a dash between two words, the addition fo an inc. at the end of the SLD string)) TM owners, should not be forced to incur the expense of registering their marks in every conceivable variation as domain names in order to preempt a potential infringer and avoid the expensive process of shutting down the infringement. Having TM owners race out to register all these domain names cannot possibly benefit the Internet community. It is a waste of resources (both public and private.)
By requiring (1) a comprehensive, easily searchable database of reliable contact information and (2) a workable dispute resolution mechanism before adding new gTLDs, ICANN will go a long way to assuaging the fears of the IP community.
Rita
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