Re: TM v. DNS?
At 04:55 PM 2/9/99 -0800, you wrote: On 10-Feb-99 Martin B. Schwimmer wrote: Write a post asking for working together to harmonize, and they reply with "drop dead." If there were several thousand instances in three years of TM owners complaining to phone companies regarding trademark conflicts as to how 1-800 numbers were allocated, the situations would be analogous (I am not referring to conflicts as to the scarcity of desired 1-800 numbers). I doubt there have been more than five reported cases regarding the trademark use of telephone numbers in the past ten years. There are five reported cases regarding DNs and TMs a month these days. I put forth that the reason conflicts dont exist in the case of 1-800 numbers is because it is well known that such "conflicts" will not be accomodated. And in fact, that is the practice. The collision with the pre-existing body of rights known as trademark rights is an externality of the business of selling domain names. The DNS can take responsibility for this externality and work to minimize the externality - or they are, to put the best face on it, bad citizens. Any rules which automatically require a user to ceritify they will not use this name to violate a trademark is a violation of their fundamental rights. They have a right, under law, to use the name in any fashion unless proven by the trademark holder, in a court of law, that their use violates the trademark holders' rights. I have asked in the past, and I ask again, WHY SHOULD TRADEMARKS HOLD GREATER PROTECTION IN CYBERSPACE THEN THEY DO IN ANY OTHER MEDIUM? What is so unique about Cyberspace that requires a special set of extra legal rules and a limit on the free rights of domain name holders? Exactly. That is precisely the argument I've made in the case of Interstellar Starship Services v. Epix, Inc., in the 9th Circuit Court of Appeals. With any luck, my client will prevail and this debating can get resolved. The case has more than a passing reference to NSI, by the way. :-) Bill Lovell
Re: TM v. DNS?
At 08:44 PM 2/9/99 -0500, you wrote: Any rules which automatically require a user to ceritify they will not use this name to violate a trademark is a violation of their fundamental rights. That would be the fundamental right to violate other people's rights? How can use of a character string that someone else just happened to trademark, when used for a non commercial or other non infringing purpose, possibly be a violation of rights? Why should a trademark holder feel they have a "right" to control any and all uses of a character string above and beyond what any laws grant them? Such a right is what is called a "right in gross," and the 9th Circuit, in the Lockheed case, specifically said that a trademark registration gives no such right. The Lockheed case helped me to win the ISS v. Epix, Inc. case in District Court in Portland, Oregon. Bill Lovell
Re: TM v. DNS?
On 10-Feb-99 Martin B. Schwimmer wrote: Write a post asking for working together to harmonize, and they reply with "drop dead." If there were several thousand instances in three years of TM owners complaining to phone companies regarding trademark conflicts as to how 1-800 numbers were allocated, the situations would be analogous (I am not referring to conflicts as to the scarcity of desired 1-800 numbers). I doubt there have been more than five reported cases regarding the trademark use of telephone numbers in the past ten years. There are five reported cases regarding DNs and TMs a month these days. I put forth that the reason conflicts dont exist in the case of 1-800 numbers is because it is well known that such "conflicts" will not be accomodated. And in fact, that is the practice. The collision with the pre-existing body of rights known as trademark rights is an externality of the business of selling domain names. The DNS can take responsibility for this externality and work to minimize the externality - or they are, to put the best face on it, bad citizens. Any rules which automatically require a user to ceritify they will not use this name to violate a trademark is a violation of their fundamental rights. They have a right, under law, to use the name in any fashion unless proven by the trademark holder, in a court of law, that their use violates the trademark holders' rights. I have asked in the past, and I ask again, WHY SHOULD TRADEMARKS HOLD GREATER PROTECTION IN CYBERSPACE THEN THEY DO IN ANY OTHER MEDIUM? What is so unique about Cyberspace that requires a special set of extra legal rules and a limit on the free rights of domain name holders? TM owners are not interested in rigging the DNSO to gain some type of majority (einar's hypo aside). They are in this debate because of the f*** you tone of Mr. Feld's post. (if my expurgated term offends, I apologize - but it is the essence of Mr. Feld's message). The threat TM owners make is that they will get laws passed if they do not get some accomodation in this process. I say that is an empty threat, and nothing but an attempt to bully. Let Trademark holders have the EXACT same representation in the DNSO as ANYONE else. Why should they have ANY special extra representation? I want to see you justify this! Why should they have ANY extra standing over ANY other stakeholder? "As an aside, I will add that TM law seems to be adjusting just fine, with no need for any raidcal adjustments on anyone's part." Which conclusion can only be reached by ignoring the totality of the TM/DN conflict over the past few years. Note the contradictory tone - there is no problem - accomodate yourself to the problem. I've looked at the "totality" as you call it, and compared to the market as a whole, find it to be very insignificant to the overall picture. In any market you will have a small percentage of problems, and the fraction of a percent of domain name registrations that result in a DN/TM conflict are not enough to warrant a special level of significance. If you claim otherwise, I want to see some HARD numbers and percentages and the documentation to back them up. Otherwise, go back to your lobbying efforts and get laws to force us to give you this accomodation. We both know how effective THAT will be. -- E-Mail: William X. Walsh [EMAIL PROTECTED] Date: 09-Feb-99 Time: 16:46:36 -- "We may well be on our way to a society overrun by hordes of lawyers, hungry as locusts." - Chief Justice Warren Burger, US Supreme Court, 1977
Re: TM v. DNS?
Write a post asking for working together to harmonize, and they reply with "drop dead." I wrote: The conflict can be ameliorated at least through through various tweakings of both the DNS and the TM system (and in the behavior of DN and TM owners). Mr. Feld replied: Again, this is based on the idea that there is a conflict which must be modified by making adjustments on all sides. I argue that this is a flawed understanding. Rather, the existence of the DNS is a fact to which trademark law must accomodate itself, as it did to such diverse things as telephone numbers and other identifiers. If I said that the victims of "reverse DN highjacking" that DN owners should accomodate themselves to the way things are, Mr. Feld would respond how? If there were several thousand instances in three years of TM owners complaining to phone companies regarding trademark conflicts as to how 1-800 numbers were allocated, the situations would be analogous (I am not referring to conflicts as to the scarcity of desired 1-800 numbers). I doubt there have been more than five reported cases regarding the trademark use of telephone numbers in the past ten years. There are five reported cases regarding DNs and TMs a month these days. The collision with the pre-existing body of rights known as trademark rights is an externality of the business of selling domain names. The DNS can take responsibility for this externality and work to minimize the externality - or they are, to put the best face on it, bad citizens. TM owners are not interested in rigging the DNSO to gain some type of majority (einar's hypo aside). They are in this debate because of the f*** you tone of Mr. Feld's post. (if my expurgated term offends, I apologize - but it is the essence of Mr. Feld's message). "As an aside, I will add that TM law seems to be adjusting just fine, with no need for any raidcal adjustments on anyone's part." Which conclusion can only be reached by ignoring the totality of the TM/DN conflict over the past few years. Note the contradictory tone - there is no problem - accomodate yourself to the problem.
Re: TM v. DNS?
Any rules which automatically require a user to ceritify they will not use this name to violate a trademark is a violation of their fundamental rights. That would be the fundamental right to violate other people's rights? How can use of a character string that someone else just happened to trademark, when used for a non commercial or other non infringing purpose, possibly be a violation of rights? Why should a trademark holder feel they have a "right" to control any and all uses of a character string above and beyond what any laws grant them?
Re: TM v. DNS?
On 10-Feb-99 Martin B. Schwimmer wrote: Any rules which automatically require a user to ceritify they will not use this name to violate a trademark is a violation of their fundamental rights. That would be the fundamental right to violate other people's rights? No, a fundamental right to be assumed that they will not until proven otherwise. And to finish the paragraph you snipped : They have a right, under law, to use the name in any fashion unless proven by the trademark holder, in a court of law, that their use violates the trademark holders' rights. You ignore this part for a reason I presume. I think I know why. Please answer the rest of my questions, which you snipped : Point 1 : I put forth that the reason conflicts dont exist in the case of 1-800 numbers is because it is well known that such "conflicts" will not be accomodated. Point 2 : I have asked in the past, and I ask again, WHY SHOULD TRADEMARKS HOLD GREATER PROTECTION IN CYBERSPACE THEN THEY DO IN ANY OTHER MEDIUM? Point 3 : What is so unique about Cyberspace that requires a special set of extra legal rules and a limit on the free rights of domain name holders? Point 4 : Let Trademark holders have the EXACT same representation in the DNSO as ANYONE else. Why should they have ANY special extra representation? I want to see you justify this! Why should they have ANY extra standing over ANY other stakeholder? Point 5 : I've looked at the "totality" as you call it, and compared to the market as a whole, find it to be very insignificant to the overall picture. In any market you will have a small percentage of problems, and the fraction of a percent of domain name registrations that result in a DN/TM conflict are not enough to warrant a special level of significance. If you claim otherwise, I want to see some HARD numbers and percentages and the documentation to back them up. Otherwise, go back to your lobbying efforts and get laws to force us to give you this accomodation. You can ignore those 5 points, but they will not go away. I will continue to ask them for as long as they remain factually unanswered. -- E-Mail: William X. Walsh [EMAIL PROTECTED] Date: 09-Feb-99 Time: 17:30:55 -- "We may well be on our way to a society overrun by hordes of lawyers, hungry as locusts." - Chief Justice Warren Burger, US Supreme Court, 1977
Re: TM v. DNS?
Any rules which automatically require a user to ceritify they will not use this name to violate a trademark is a violation of their fundamental rights. That would be the fundamental right to violate other people's rights?
