Re: [wg-review] Trademarks and UDRP

[Jefsey Morfin <jefsey@wanadoo.fr>]

Kent,
I followed your reasoning about TMs/DNs. I agree with most of what you
wrote and whish you the best with "songbird" which is a very nice TM/DN
(and a good commercial one).

On 08:29 24/02/01, Kent Crispin said:
> > 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.

But here I have to partly disagree. Basically the dispute is always
the same: as long as the DN is not legally defined, it cannot be easily
legally handled and to base laws on its "functions" is hazardeous.

But let assume we have a definition for discussion sake.

We would still have a problem. Just to stay within what I grasp from the
US laws, I would compare TLDs with cities. "Songbird" is not a famous
trademark, so I have the right to start a Songbird shop in Dallas while
you have one in San Francisco.

Now, we are still in the XVIth century. Then I cannot do it, not because
of the law, but because the lack of cities: a guy from the May Flower
opened a "SongBird" barber shoppe and I have still to wait for Mr.
Stuyvesant to start building New York to open a drapper business by
the same name there. With one million TLD (cf. BoD response to
GAC) there is no more problem.

>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.

Your conclusion is right: conflicts are inevitable. But your premises
are not. The conflicts are not among TM/DN owners but against the
IANA's policy (that ICANN worsened). The law (ICANN bylaws) is not
respected (to treat everyone equal / ICANN not a registry) which
would make these types of conflicts disapear.

What you actually defend is a law which accepts the dirrespect
of the law. So, if I certainly understand your rationale, I would
suggest you to wander how such a law might really protect you,
either and both as a user or as a TM owner.

Jefsey







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