Re: trademark law

[Michael Dillon <michael@memra.com>]

On Thu, 12 Dec 1996, Net Sales wrote:

> >This is an oversimplification. Trademark laws do not apply to
> >non-commercial use of trademarks. And there is no current legislation or
> >case law that deals with domain names.
> 
> Bear with me here a moment, but how is a domain name a non-commercial use?
> Ford doesn't have a web site so it can solicit charitable donations to its
> Foundation.  Baskin Robbins is not providing a web site for the benefit of
> handicapped children.

I could provide examples of government domain names, educational domain
names, personal domain names and charitable organization domain names.
Just because the white pages of the phone book has companies listed does
not make the white pages into a commercial directory. While there are no
perfect analogies, the DNS is a lot like the phone directory white pages.
It is simply a directory in which you can look up domain names and get an
IP address. In a typical white pages phone book (outside major metro
areas) you start by looking up the town or city, then look up the surname,
and then the first name or initial or street address to narrow down the
one number that you need.

> Domain names are absolutely commercial in most cases.

There is no evidence that this is the case. And even if there was it would
be irrelevant. I'm sure that at one time most phone numbers were
commercial due to the high cost of owning a phone. But eventually the cost
became more reasonable and commercial phone numbers were outnumbered by
non-commercial numbers. The same will happen with domain names. And, BTW,
don't assume that all .COM domains are commercial because many are not.

>  That's why companies
> fight for them and fight to own them 

Wrong. They fight for them bnecause they do not understand that domain
names are just addresses. Due to the warped coverage of domain names in
the press and to NSI's misguided policies, many people have the mistaken
impression that domain names are like trademarks. They aren't.

>-- so web surfers who are using search
> engines can find them by typing in "chrysler" not just for the hell of it.

The domain name is irrelevant to whether or not a search engine can find
the website. Search engines rely primarily on the content of web pages to
do their indexing.

> But I'm just a lawyer practicing Intellectual Property law and an
> independent business person, so how could I possibly know more about the
> law than you who does ISP Consulting.

I'm not surprised. Many lawyers are so immersed in practicing law that
they lose the ability to understand the law in general. This is why we do
not allow lawyers to make or enforce the laws. I can understand why you
might think that intellectual property law is relevant to the DNS since
you specialize in that area. But DNS names are not intellectual property
any more that children's names or street names are.

> And BTW, we lawyers get very very tired of people telling friends and us
> what the law is because of course laypeople are just lawyers without a
> license.  I wouldn't never presume to tell you how an ISP should or does
> operate.

I listen to everybody who tells me about what ISP's should do because that
is how I learn.

> carol forgot to mention that there IS caselaw, the most noticable being
> warner bros vs. roadrunner.com, where the little guy actually won one!

I thought that was settled out of court or withdrawn.

Michael Dillon                   -               Internet & ISP Consulting
Memra Software Inc.              -                  Fax: +1-604-546-3049
http://www.memra.com             -               E-mail: michael@memra.com