Re: [wg-review] Trademarks and UDRP

[Kent Crispin <kent@songbird.com>]

On Sat, Feb 24, 2001 at 10:44:10AM +1100, Dassa wrote:
> |>-----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. 

What is odd is your conception that there are "powers that be" that 
have any control over any of this.  There aren't.  That's why the word 
"allow" is funny -- there isn't any entity in a position of authority 
that has the power to "allow" or "disallow" anything.  We are in a 
state of nature.

> |>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. 

http://dcc.syr.edu/roughjustice.htm:

    On the other hand, the statistics also prove that trademark-domain
    name disputes are a very small portion of the overall domain name
    marketplace, and that the problem is not growing.  The number of
    disputes is at best holding steady and may already be declining.  It
    also reveals that a tiny number of malfeasors account for a
    significant share of the problem...Disputed names thus constituted
    somewhere between 0.00035 and 0.00028 of the total number of new
    registrations.  In other words, for every registered name that
    causes a dispute, there are now about 3,500 new ones registered that
    do not. 

To paraphrase:  TM conflicts are a small matter, growing smaller, and 
most of the problems come from a few bad guys (cybersquatters).

[...]

> 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.

In fact there are many such registrations.

>  Who has the claim on the domain
> name?

Whoever gets it first, as long as their use is legitimate.

> Perhaps I don't have a trademark, perhaps I have registered the
> business name songbird, and the company registrations.

If the domain name is in legitimate use, then it's yours. (*)

> Does the fact
> that I have registered the name in more jurisdictions than you play a
> part?

No.

> 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?

Because DNs did not exist within the existing legal structures, but DNs
have come to have functions that overlap those of TMs.  Thus conflicts
come into being, and thus the law expands to cover those conflicts. 
This new law expands the rights of TM owners into a new arena with
functional overlap with TMs.  This is perfectly reasonable and in fact
necessary -- the conflicts are real, and current law is inadequate to
deal with all the issues.  Moreover, given the facts, it is inevitable. 

================================================================

(*) Assuming that the UDRP is working correctly.  There is widespread 
agreement that the UDRP could be improved; you, however, are arguing 
that it is completely illegitimate, and I am disputing that.

-- 
Kent Crispin                               "Be good, and you will be
kent@songbird.com                           lonesome." -- Mark Twain
--
This message was passed to you via the wg-review@dnso.org list.
Send mail to majordomo@dnso.org to unsubscribe
("unsubscribe wg-review" in the body of the message).
Archives at http://www.dnso.org/archives.html