I have been reading the WIPO RFC2 and also catching up
with some of the political machinations surrounding the
dnso.org meeting in Washington Jan 22.
It's apparent now why Kent and other propagandists for the
gTLD-MoU group are trying so hard to bury the results of
my trademark study under a mountain of negative verbiage.
The WIPO proposals are designed to dramatically shift the
balance of power away from the individual domain name
registrant and towards the trademark holder who wishes to
challenge a registration. In effect, the proposals are
designed to give TM holders a kind of prior restraint over
the registration process, and remove from the TM holder
the need to engage in the normal process of fact-finding
and proof that is normally associated with TM litigation;
e.g., proof of commercial use, confusion, dilution, etc.
The key issue, therefore, is whether TM holders are likely
to abuse the additional power they will have to challenge
domain name registrations.
That is why the findings of my study are so important.
In counting the type and frequency of known domain name-
trademark conflicts, we discovered that the single largest
catgeory were "string" conflicts--cases in which the TM holder
challenged a name that was being used for perfectly legitimate
reasons, and which, under traditional notions of trademark
protection, could have been used concurrently. The key
argument of the study was that the scope of trademark
protection is being expanded beyond its traditional bounds,
both by court decisions and by mechanical "dispute
resolution" policies of registries that automatically
privilege a TM over other claims to a domain name.
To repeat, half of the 121 cases were string conflicts--
of the "pokey.org" type--in which TM holders were asserting
rights over names they really have no exclusive right to.
We also showed that parody use of names was not being
protected, as it should be under first amendment doctrine.
NSI's dispute resolution policy was the biggest culprit in
both of these types of cases, but court decisions or the
mere threat of litigation were also promoting these
injustices.
The clear implication of this analysis is that shifting the
balance of power even further toward TM holders will result
in even more abuse of domain name registrants at the hands
of TM holders. That is, the entire process will be rigged
to encourage TM holders to challenge any registration that
they believe remotely affects their marks. At the very
least, WIPO should acknowledge that TM holders are capable of
systematically abusing domain name registrants, and implement
procedures that guard against this possibility.
In short, the findings of the study are extremely inconvenient
to the agenda that TM interests have set for themselves.
It must be extremely embarrassing to learn, after crying
to the US government about all the abuse they have suffered,
that TM holders themselves have been one of the prime abusers
of domain name rights.
It is highly revealing that INTA and its new-found puppet,
Kent Crispin, have chosen to attack the study on grounds of
statistical methodology. I don't think this point has been
emphasized enough: the entire argument they have mounted
consists of the following two points:
--we do not know whether the cases studied are a statistically
representative sample of ALL such cases in the world.
--therefore, we cannot draw "scientific" conclusions about
how closely the proportions we discovered in the study
match the proportions of all such cases.
Let's move beyond the obvious fact that these arguments
are made in bad faith--both of these points were acknowledged
explcitly in the original study--the more interesting response
is this:
Note what is missing from their argument.
--there is no challenge to the way the cases were classified.
Thus, it has been conceded that of the cases we know about,
the proportions are correct.
--there is no challenge to the basic argument of the piece,
namely that the result of the disputes, in both court
decisions and registry policies, tend to expand TM rights
beyond their traditional scope in territorial law.
--there is a rather amusing avoidance of the fact that
our inability to draw conclusions about the entire population
could very well mean that our study drastically *understated*
the abuses committed by TM holders. That is, it is just as
likely that there are MORE string conflicts in the entire
population than that there are less. We simply don't know.
Thus, I can see why INTA and its apologists would want to
divert our attention away from the plain facts of 121 domain
name trademark interactions, and try to reorient our attention
to a chimerical ideal of a perfectly representative sample
of a population.
There is also an obvious double-standard at work here.
The WIPO report makes conclusions and recommendations about
policy, as does my study. The WIPO report does not have any
"scientific" basis for its conclusions, does it? It constructs
a legal and policy argument based on the facts submitted to it,
and its own biases. Indeed, the WIPO report makes much of a
study by a European trademark association that consists of
nothing more than asking 60 trademark lawyers their opinions
about how bad the problem is. This is discussed at length in
the document, as if it were an important and valid souce of
evidence. Funny, INTA didn't commission anyone to look into the
scientific character of that study, did they? Funny that Kent's
newfound concern with statistical reliability and scientific
rigour did not extend that far.
No, what's really going on here is that the dnso.org is
attempting to cut a deal with the trademark interests.
The TM lobby will be given a big slice of control
over the name space, and the corporate supporters of INTA
and other TM interests will line up behind recognition of
dnso.org. Kent Crispin is just a listserv apparatichik
in this machine, a hack who's following the latest party line.
__________________________________________________
To receive the digest version instead, send a
blank email to [EMAIL PROTECTED]
To SUBSCRIBE forward this message to:
[EMAIL PROTECTED]
To UNSUBSCRIBE, forward this message to:
[EMAIL PROTECTED]
Problems/suggestions regarding this list? Email [EMAIL PROTECTED]
___END____________________________________________
