RE: [wg-review] Trademarks and UDRP

["Dassa" <dassa@dhs.org>]

|>-----Original Message-----
|>From: owner-wg-review@dnso.org [mailto:owner-wg-review@dnso.org]On
|>Behalf Of Kent Crispin
|>Sent: Thursday, February 22, 2001 3:46 AM
|>To: wg-review@dnso.org
|>Subject: Re: [wg-review] Trademarks and UDRP
|>
|>
|>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.

An impact certainly, doesn't explain why they have been allowed to dominate the dns scene since as it appears they have been.

|>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.  (*)

Doesn't hold to the situation.  Rather, if I register a business name here in NSW Australia and then grow until I am in competition with another company using a similar name but in a different field (or even in the same field or from another region) and they then attempt to attack my business by claiming I have no right to use the name, it would be a similar situation.  In the situation above, there would be no way another business could force me to not use the name I have legally registered.  This is the situation we have with domain names.

It is not about preventing anothers view of the world, it is about some feeling threatened by competition and trying to restrict others and capture their market share.  

|>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. 

The commercial interests realised the potential and jumped on the bandwagon, yes.

|>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.

No, I refute that statement.  Domain names do not impact on Trademarks, no more than any registration of a business name would.  It is all about market share and potential customers, not about the actual trademarks.  I see no reason why any accomodation has to be provided.

|>> 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.

If that was the case, there would be an argument to say that holding a domain name entitles one to a trademark consisting of that name or any derivatives.  I also question the dollar effect on TM holders, any $ effect is not directly related to the trademark in most situations but more in the potential customer base which is not directly related to the trademark.  I also fail to see why the DNS should be used to resolve such issues that are purely commercial in aspect.  The same type of resolution is not been seen between the TM holders and all the other bodies involved such as the different regional law courts and business/trademark registration requirements.  Why should the TM holders gain such an advantage over the DNS when they obviously haven't in the more traditional approaches.

|>[...]
|>
|>> 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. 

I agree that as this is the early stages, more difficulties are encountered.  I fail to see why the need to implement such resolutions was required at all.  The only people to benefit are the TM holders that I can see.  There is no advantage gained for the DNS system and in fact a number of disadvantages.  I also see it as circumventing current law and regional influence.

The URDP appears to me, as being used by the TM holders to increase dominance on an International scale without going through the regular channels.  In other words attempting to get greater power with little expense and at a cost to ordinary domain name holders.  To me, a domain name registration is similar to a business name registration.  There should not be easy methods for one business to damage another by attacking the legitimate use of a name.  I include personal domain name use in this as well.  They are after all competing for customers also ie visitors.  What they display is provided free but is a product just the same.

|>(*) 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.

Yes but if I live on a road with the same name and have the same number it doesn't mean I should also have to prune my trees every year.

Darryl (Dassa) Lynch.

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