Re: [wg-c] trademark law & new gTLDs

[Milton Mueller <mueller@syr.edu>]

Kent Crispin wrote:

> >       What's the answer?  You got it — MORE gTLDs.
>
> It might be the answer if humans were different.  But it is clear that more
> gTLDs, by themselves, do not solve the large TM holders problem.  They will
> still have to either register in every gTLD, or spend a lot of time
> policing all the new ones.

I don't buy this. The search procedures for monitoring new registrations are all
automated; when you talk about more TLDs = "more time searching" you are talking
about differences of microseconds. There are commercial services, such as Thomson
and Thomson, that do this for a reasonable price.

> >  In meatspace, consumers cope
> > just fine with the fact that there are a lot of businesses named Acme.
> > They know about the various businesses; they don't expect any particular
> > Acme to be the particular one they have in mind; and they don't get
> > confused.  If consumers learned that there were a lot of different domains
>              ^^^^^^^^^^^^^^^^^^^^
>
> Big "if".  If they don't learn, TM holders are in deep weeds.

Again, I think this is plainly wrong. Consumers *already* know this. It is the
constrained, monopolistic nature of the DNS space that is the anomaly, the
outlier. The sooner we break out of that, the better.

And what you and the TM/IP interests keep avoiding is the fact that there are
literally hundreds of legitimate uses that can be made of the same character
string. Think of the words "glad" or "disc" or "bell" for example. If you are
trying to prevent any name that a TM owner thinks he ought to have from ever
being *registered*, you are aiming for a goal that is both impossible and
undesirable. We should only be trying to make it easier and cheaper for TM owners
to spot and take action against real infringement. And a judgment of
infringement, as Rita confirmed, can only be based on an analysis of the facts
about how it is used.