Re: [wg-review] Trademarks

[Karl Auerbach <karl@CaveBear.com>]

> Surely the key to the trademarks/domains issue is that of net user
> confidence.

I would disagree.

The purpose is not "confidence" but whether a mark identifies and
distinguishes a particular good or service from other offerings.

It matters naught whether that identification is associated with a
positive or negative message about the good or service.  I can say
"Firestone-tires-go-boom.com" and be using the mark in a totally
permissable nominative manner to convey a negative message.

I would submit further that it is for national legislatures, not for ICANN
or its sub-body, the DNSO, to decide to what extent those who have marks
are able to constrain the activities of those who might diminish the
strength of a mark to identify and distinguish.

> What is important is the intent of the domain name holder.

Again I disagree. Criminal laws focus on ill intent. Civil laws are
designed to remedy a wrong, to provide compensation.

To focus on the intent of the domain name holder is to tacitly admit that
the purpose of the rules is punative and not compensatory or remedial.

If there is a harm caused to a mark holder, I submit that it is better to
compensate the damage than to punish the ill intent of the doer.

Indeed, I suggest that the intent of the domain holder is entirely
irrelevant, that all rules/laws regarding DNS-domain name interactions
ought to be based on objective evaluation of the actual use of the
contested name not on the actual or implied mental state of the accused
domain name holder.

		--karl--



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