On Wed, 30 Jun 1999 04:49:39 -0400, John Gaskill
<[EMAIL PROTECTED]> wrote:
>Holding a domain name for the purpose of reselling at a profit, and
>not using the domain as a site URL is certainly engaging in commerce.
>If you buy fish, freeze them and advertise that you have "frozen fish,"
>even
>if the advertising is only being listed in a directory under "frozen fish
>for
>sale" - you are engaged in commerce whether you like it or not, regardless
>of how you describe it (even if the fish are only "trading fish" - old
>finance joke).
But not necessarily commerce that is infringing on the registered
mark.
>>But back to my point -- if you believe that I am extorting a mark holder
>>when I speculate in a name, then by definition is "one buyer".
>>Otherwise there would be multiple legitimate buyers and if I'm engaging
>> in extortion, then transfering the name to another would not cure the
>extortion
>> -- somebody will still not be getting the name they want.
>
>If you acquire as a DN, a registered mark holder's name for the sole
>purpose
>of reselling the DN to a mark holder (whether the mark is held by one or
>many does not matter) you are engaged in an attempt "to obtain from a
>person by force, intimidation, or undue or illegal power" money in exchange
>for "a DN in the form of a TM holder's name."
>
>If there is only one buyer (your phrase) there may only be one registered
>trademark to the corresponding name. If there are many, such is the case.
>Regardless, since you chose the scenario of a TM you are now stuck
>with the result that you cannot construct a good argument that says,
>"It's okay to deal in other people's TM as domain names and get big
>sums of money out of them."
OK, so if I have a reasonably good idea that 7-11, or some other
convienance store or similar business, will want a piece of land which
the a city is expanding towards, a prime piece of what will be a busy
corner, and I but it for the sole purpose of profiting from its
desirability am I doing anything unlawful?
What is it about domain names that make them unique and make
speculation unlawful?
>Sorry, Karl, your argument does not hold water.
I think it might be the other way around. I think you just WANT it to
be this way.
>> If I learn (without insider knowledge) that you want to build a
>> shopping center on the corner of First and Main St, and I race
>> and buy that land before you do and then offer to sell it to you
>> at twice what I paid, I have done nothing illegal. Many would
>>call me smart, more would call you stupid for not buying it before
>> you made your desire for it public.
>>
>>So what is different about domain names?
>>
>>Nothing.
>
>Your land analogy is misguided. A better analogy would be
>that I own an apartment building and want to move into a
>vacant penthouse there. You learn of it and before I have
>communicated to my managers that I want to move into it,
>you lease it. When I call the managers they tell me the pent-
>house has been leased BUT, the tenant has not moved any
>furniture into it. In fact, the tenant said if I called, tell me I
>could have the apartment for a mere $50,000 transfer of
>lease payment.
>
>The lease agreement form says you must occupy the
>penthouse for the lease to be binding. You say your
>holding of the lease and payment of the rent constitutes
>occupancy.
>
>Who is right? Either I can pay your fee or file suit.
>
>As the saying goes, tell it to the judge.
There is nothing in the "lease agreement" that says domains cannot be
purchased for speculation. Your analogy makes absolutely no sense.
>Face it Karl, sometime soon, the jig will be up.
>I just hope you're not holding too many tulips in your
>portfolio when the bottom falls out.
>
I think this is the hope of people who see speculation as the biggest
evil on the net. I don't think it is a given that it will end anytime
soon. Though I think this is one of the main reason people want the
WIPO mandatory arbitration in place, to set a standard on this
speculation issue that is not in place in court. Mandatory
Arbitration works only when case law over an issue is clear and has
been fleshed out over time (something I have been saying for years
now). As Kent Crispen so aptly said yesterday, this is NOT the case
for domain names. (see my sig for the direct quote).
--
William X. Walsh
General Manager, DSo Internet Services
Email: [EMAIL PROTECTED] Fax:(209) 671-7934
"The fact is that domain names are new and have unique
characteristics, and their status under the law is not yet clear."
--Kent Crispin (June 29th, 1999)
