Re: [wg-review] 11. IDNH Centers of Interest

[Robin Miller <robin@minervan.com>]

Bret Busby wrote:

> Thus, I contend that the term domain name owner, is the appropriate
> term, and, more appropriate than domain name holder.

Domain names are assets, but its still a contract right that you sign with a
registry. You have to have other legal rights backing your claim on the domain
name. If you do not pay for your domain name, the name goes back into the pool
for someone else to register.

Hence why the UDRP - not everyone has those rights. Lets say on the obvious
trademark 'panavision'. The person that registered that trademark as a domain
name did not have rights in that name, and it was taken away from him by a
court and given back to the trademark holder. Yes, trademark HOLDER, not
trademark OWNER... you have to use a mark in order to keep it. They are
supposed to be holders, not owners.

A business name is not different - you register a right to use that business
name in a particular branch of business in a particular area, but you cannot
own the name. You can own the business attached to the name, and the name is
worth more if your business is successful. 

A term like panavision is invented and therefore has more right to strong
trademark protection. Trademarks on common dictionary words do not have that
right to exclusive use by a trademark holder. That is changing, thanks to UDRP
and bad court decisions.

as long as we have corporations like Ferrero trying to own common words like
'kinder' (means children in German) or easyGroup trying to ease everyone out of
the common word 'easy' - ... we cannot allow such 'ownership' of common words
to occur. If you have an invented trademark (not using common words or initials
of common words) for your company and can prove a common-law or registered
trademark, great. UDRP the sorry jerk that's holding your name hostage. Its up
to you to defend your trademark. A cost of doing business, unfortunately. But
if your business name occurs in the dictionary, then you do not enjoy an
exclusive right on the word. Case closed.

Unfortunately, the UDRP is not designed to help small businesses with a
common-law trademark or registered business name. Its designed to really help
only those with famous or registered trademarks. Also, is your trademark being
used in international trade - international trademarks are not inexpensive,
there are good reasons for that.

I understand you think 'ownership' might give you more rights, but in practice
it does not. Sharing rights gives everyone more rights, as in not taking them
from all other parties and conferring them only to one elite entity. You cannot
own a word and prevent everyone else from using it. That is just silly,
although the more aggressive TM folks think its a pretty cool idea. 

Others are losing perfectly legitimate rights in common words by conferring
them to one party only. The term 'Kinder' in German is now owned by Ferrero by
this logic. Should children be forced into advertising for candy on a website,
and the non-profit child activist organisations forced off their site simply
because Ferrero has a long standing trademark on the word 'Kinder'? What gave
them the right to assert an exclusivity to a common word over the common people
that use it in everyday life??

Domain name holders do not have more rights than trademark holders, and vice
versa. Domain name holders can reserve and use a name for any number of
reasons, trademark being only one of them. We thought we had rights to register
a domain name since it was the initials of my fiance's name used in business
since 77, but that turned out to be false, thanks to the trademark 'owners'...
Uzi Nissan now has the same problem with Nissan Motors. Time will tell if
Nissan Motors wins exclusive rights to the common Semitic last name and Arabic
word 'Nissan'... (means April in Arabic and the name of the 7th month of the
Hebrew calendar)

My last name is trademarked by Miller Beer, a world-famous mark. If I were to
register anything with the word Miller and Miller Beer were to take me to court
in Germany, I will lose the case since trademark law is stronger than name law
here. Its happened way too many times here already, including to us. 

You are suggesting an arms race with those with more armament, a war which you
will most certainly lose. I find my time and money better spent fighting the
whole concept of word ownership in the first place.


all the best, Robin
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