Responses to Responses

[rick@yujean.com (Net Sales)]

This is Carol the, yes I am a lawyer, lawyer.
Joseph Kim said in response to the following in my comment:

>>I wouldn't never presume

that
>>o in other words you _would_ presume to tell an ISP how to operate.  :-).
>>Are you really a lawyer?  I've never met one who was so careless with their
>>grammar.

Oh, and you have never made a typographical error?  My it must be nice to
be perfect.
Yes, I am a lawyer.  Licensed in the State of Oregon and you obviously
haven't met very many lawyers in your time.  Some of the worst writing in
the history of the Universe appears in lawyers' briefs.

My thanks to Simon Higgs for his concurring post.  It's nice to know that
some of you know what's really going on in the real world.

Carl Oppedahl, who is indeed a lawyer as I know his name from a Trademarks
list, comments that not all domain names are commercial.  True.  But my
comment was in response to one stating that trademark laws  "do not apply
to non-commercial use of trademarks."  That is not necessarily true.  Some
non-commercial uses are okay and some aren't.  Infringement can potentially
exist even in a non-commercial setting.  The presentation of oneself under
the guise of a given domain name that is a trademark (whether registered or
not, and yes, Virginia, one can own a valid trademark that is not
registered and can even prevail over a registered mark if one started using
it first) potentially fits the criteria for infringement:  confusion by the
public.  This is an area that is and will continue to be fought in the
courts, as well as in the PTO (Patent & Trademark Office for those of you
who aren't familiar with the acronym) and probably courts around the world.

Ivo Essenberg checked in with:
>>Domains names are not an exclusive thing for COMPANIES ... non-profit
>>>>organisations can have one, private persons can have one.

Yes and many, if not most, non-profit organizations (US spelling) have
trademarks.  The Red Cross and the Olympic Committee (who have a super
trademark in the US) come immediately to mind.  Do they have no right to
protect the use of their marks just because they're non-profit?
"Non-Commercial" does not mean no money involved.  It can mean parody,
education, informational, etc. but whether or not one is a profit-making
entity is irrelevant.

The Net started with the government and with colleges, some of them
non-profits.  Should we decide, then, that only they can have domains?

Not everything on the net is commercial but a lot of it is, in the form of
ads, stuff for sale, information about one's products, recommendations of
products, etc. etc.  And there will be more and more as enterprizing people
figure out how to use it for more and more varied commercial ends.

He adds:
>>Private persons still form the largest part IMHO. The fact that you hear
>>about >>companies fighting over domain names is the fact that, in the US
>>mainly, >>companies take ANYTHING to court.

Companies have more money and more at stake in fighting over domain names
than individuals.  And, thanks for that really enlightened stereotype about
Americans going to court.  Not true.  Never was.  And excuse me but there
are court systems in all developed (and many undeveloped) countries.  The
courts resolve differences that people/companies cannot resolve on their
own.  They are a tool, like a computer, and like any tool, can be abused.
But don't presume that what you've heard from critics about Americans and
courts is true.

And he also comments:

>>1. The Internet was working fine when it was an academic/research network
Yeah with tons less traffic and way fewer people and opportunities.  Do you
want to go back to that restriction?  (and the taxpayers supporting it,
without access-rick)

>>2. There are conflicts now because of the increasing commercial use
Yes, sure will be.  There would be conflicts even without commercial use.
We're dealing with people here.  And people generate conflict.

>>3. Laws will become necessary
Yes, but who's going to pass them and who's going to enforce them?  See
comments below of treaties which is probably as good as it's going to get
internationally until and unless a true World Court exists.

>>5. The problem, IMHO, is that people try to apply national trademark laws to
>>international resources. As long as we don't have international
>>trademarks >>this is not a solution. (And don't tell me I'm bullshitting
>>... some lawyers >>in the Netherlands have stated that all uses of marks
>>on the Internet should >>conform to Dutch trademarks laws ... there are
>>200+ countries on Earth ... >>should they all claim that, we would have
>>international war)

Uh, and what about the trademark treaties that your country and the US and
most of the rest of the world are signatories of?  There are no single set
of LAWS covering trademark but there are indeed internationally recognized
resources for dealing with infringement.  There are treaties so there won't
be wars.

And from Michael Dillon:
>>I could provide examples of government domain names, educational domain
>>names, >>personal domain names and charitable organization domain names

Yes, and your point was?  So what.  Doesn't mean there are plenty of
conflicts over names even if you exclude the ones that have no possible
trademark implications.  Many of the organizations of the type you list,
however, HAVE legit trademarks.  See comments above.  (see also the current
fight between columbia university, columbia/presbyterian hospital, and
columbia medical systems-rick)

>>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.
This is actually a very good argument for using numbers instead of names as
there are lots of unique combinations.

>>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.
See comments above re: "commercial" -- it doesn't mean only money-making;
it means lots of other things too.

>>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.

But they ARE.  Because they identify a product or person and give a way to
reach that product or person.  That is EXACTLY what a trademark does.  It
identifies the product or service.  That is indeed why there will continue
to be fights over domain names.  Because the name represents the site.  And
that is exactly what a trademark is.

>>Search engines rely primarily on the content of web pages to do their
>>indexing.

Okay, so you go online and are looking for information about the newest
Toyota truck.  Do you type "truck" into the search engine or "Toyota"?  Let
me guess.  That is why the names are significant.  And say you're a regular
surfer who is comfortable with the web and doesn't feel the need of search
engines.  To find that Toyota truck, do you type in www.truck.com?  Or
www.joeblow.com?  No, you type in the trademark for the truck:
www.toyota.com.  That is why companies protect their names and are fighting
for the domain rights.

>>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.

Wow.  This is a really surprising comment.  Have you studied government?
Political Science 101?  Okay, check out the former occupations of the
members of Congress, the Senate, the President and the Vice President (not
even counting the First Lady), and then tell me who makes laws.
And then, go to a courthouse and watch the prosecutors and the judges at
work, not to mention defense attorneys.  And then tell me who enforces
them.

>>>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.

Maybe if you did your homework, or thought to ask people who know (like
Carl who is on this list), you'd find out the real story.  Roadrunner won.
I think it's being appealed but I'm not sure.  Carl?  I think you were
discussing this on the TM list.

To all of you, do NOT assume this is an ISP issue.  It is, certainly, but
not solely.  It's a business issue and a legal issue and it will be a long
time before any part of it is cut and dried.  Try to look at it from all
angles, not just the computer one.  What is important and irrelevant to you
may be of the utmost significance to a businessperson or lawyer.  Know all
sides.  Only then can you begin to make a real difference.

And please excuse any typos in the above or refer them to Joseph Kim.
Thanks.
Carol Cricow
Wife of . . . oh you know.

  ------only two things that money can't buy;
                 one is true love, the other is home-grown tomatoes------
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