Re: [wg-review] Trademarks and UDRP

[Kent Crispin <kent@songbird.com>]

On Wed, Feb 21, 2001 at 06:54:00PM +1100, Dassa wrote:
> One of the things that have always confused me was why trademark
> issues were ever allowed to enter into formation of the domain policies. 

There is no mystery at all.  When the Internet became a commercial 
medium, domain names had an impact on TM holders.

Suppose you and I were neighbors in a housing tract on a hill
overlooking San Francisco Bay.  We both paid a premium because we had
"view lots".  You are a little uphill, and behind me. 

I plant a redwood tree on my lot.  In a few years (it's a very fast
growing variety of redwood) it's 200 feet tall and its branches extend
out 40 feet on either side, completely blocking your view.  I have
caused direct damage to you, because I have reduced the value of your
property.  It's my tree, on my property, and I may be very fond of it
since I raised it from a baby.  But it is damaging you.  (*)

The Internet grew up in the backyard of academia, but it grew very
rapidly, and has spread to other backyards.  In fact, for some years now
the bulk of that growth has been in the backyard of commercial interests
-- it is no accident that the vast majority of domain name registrations
are in .com. 

Domain names impact trademarks.  There is no avoiding that fact; there
is nothing that can be done about it, and hence an accomodation must be
reached.  It doesn't matter that the Internet originally started in an
academic environment -- it long ago outgrew that backyard.

> Trademarks are localised to particular regions as are business names
> etc.  Domain names are not regionalised in their use, not even the
> country codes. 

It doesn't matter that there are different semantics for TMs and DNs. 
All that matters is that they impact each other.  In many cases the
impact has serious economic consequences, but (in pure dollar amounts)
mostly for TM holders.

[...]

> I am also concerned about the issue of the UDRP and associated rulings
> being applied to third and forth level hostnames/domains.  I have
> already personally witnessed attempts to threaten UDRP and law courts
> over third and forth level domain names.  Just where is it going to end?

It's hard to say.  The battles will continue for several years,
probably, and eventually some combination of case law, legislation, and
UDRP precedents will stabilize.  *Where* it stabilizes is not really
that important, in the long run -- just *that* it stabilize.  I firmly
believe that if the rules were well-known and dependable, then people
would simply deal with them.  Free expression would just route around
the rules, whatever they might be, as it always does.  The real problem
here is that the rules are in flux. 

(*) In fact I live in a house with a view of San Francisco Bay, and I 
have a cherry tree that I have to prune down every year to keep from 
impacting my uphill neighbors view.

-- 
Kent Crispin                               "Be good, and you will be
kent@songbird.com                           lonesome." -- Mark Twain
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