RE: [wg-review] Trademarks and UDRP

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

|>-----Original Message-----
|>From: On Behalf Of Kent Crispin
|>Sent: Friday, February 23, 2001 3:43 AM
|>Subject: Re: [wg-review] Trademarks and UDRP
|>> 
|>> An impact certainly, doesn't explain why they have been allowed to
|>> dominate the dns scene since as it appears they have been. 
|>
|>Your use of the word "allowed" is odd.  Where do you suppose we would 
|>get the power, or the moral authority, to prevent TM interests from 
|>pressing their case?

Nothing odd about it.  Nothing prevents the TM holders or any others from pressing their cases.  However, what the outcomes are from that, is what is allowed to happen, either by the powers that be or by inaction from others in presenting opposing opinions and views.

|>Three points:
|>
|>1) They don't dominate.  While big IP intersets have been very
|>influential, in fact the Internet is swamping them, and they 
|>are running scared.  DN issues are only a small part of the problem for them. 
|>Moreover, TM disputes happen only in a very tiny fraction of domain name
|>registrations, and a large percentage of those are clearly
|>cybersquatters.  

I don't have the actual statistics but from a quick glance at the records and from reading I would not accept the percentage as being small without some facts to support that claim.  If you have the actual statistics available I would be very interested in seeing them.

The fact they are running scared is or should not be of concern with regards to DNS issues.  I also suspect that it is not actual trademark damages that is causing them the concern.  I suspect they see the Internet as being a huge potential customer base and they are more concerned with capturing the largest market shares they can.    

|>Moreover, the UDRP is in many ways a defeat for TM interests, not a
|>victory.  You may not be familiar with the early history, but prior to
|>ICANN, NSI's dispute resolution policy was effectively: "if a TM owner
|>wants the domain name, give it to them".  Some attorneys (notably Carl
|>Oppedahl) have argued that the domain name registry should simply have
|>stood aside.  Other attorneys have argued that there is no way to
|>prevent a clever attorney from involving the registry in the case, and
|>that Phil Sbarbaro's (NSI's main attorney in this matter) had a
|>brilliant strategy that kept the registry out of any large 
|>lawsuits, and thus allowed the vast growth of the domain name business.

I agree the previous system was not good either and we do have some improvement.  I would like to see even more improvement.  I do see why a TM holder has any rights at all over a domain name.  Same with other forms of business registrations.  

|>2) We have no moral right to try to keep TM owners from pursuing their case in whatever way they can.

No, nor is there any obligation to assist them where others are not assisted in the same manner.

|>3) We can't stop them, because they are us.  Songbird (my company) is
|>about as small as you can get, but I have a registered TM for Songbird. 

I have to admit that I'm not familar with all the aspects of trademarks and their registration.  However, I assume that there is no single International body that accepts registrations that apply world wide?  Please clarify if I make invalid assumptions.  So, in theory it would be possible for me to have registered the songbird trademark within another jurisdiction to yours.   Who has the claim on the domain name?  Perhaps I don't have a trademark, perhaps I have registered the business name songbird, and the company registrations.  Does the fact that I have registered the name in more jurisdictions than you play a part?

This is basically what I am getting at.  Why is the DNS being used to expand rights to particular groups that they do not already have within existing authoritive structures?

Darryl (Dassa) Lynch.

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