Re: Responses to Responses

[Michael Dillon <michael@memra.com>]

On Thu, 12 Dec 1996, Net Sales wrote:

> 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.  

But that's not what domain names do. If you see an ad that tells you to
phone 555-1212 and ask for Fred then that ad identifies a person and gives
you a way to reach that person. "555-1212" does not identify a person and
"Fred" does not identify a person. The ad is what does the identifying
job, the number and name are merely addressing items that you can give to
a person or system in order to get from point A to point B. I would
further argue that a URL is no more of an identifier than a domain name
is. 

Now some companies may choose to turn their domain names or URL's into
trademarks by promoting them in the same way 1-800-FLOWERS does in the
USA. But the trademark characteristic is not inherent in domain names.

> It
> identifies the product or service.

Domain names identify a computer or a group of computers managed by a
single authority, not a product or service or company.

> >>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. 

I would type in Toyota and the search engine would provide me every web
page in its index that includes the word "Toyota". If The Toyota Motor
Sales USA had their website at http://www.websites.com/tms/ then it would
still come up in the web search. The domain name of the site has no effect
on the search. And if the Toyota Dealers Association wants to register the
name toyota.dealers.ent then why not? And if Toyota owners want to
register the domain toyota.sucks.alt because they are having problems with
their cars, then why not? If Yoshi Toyota runs a Sushi bar in New York
called Toyota's Sushi Bar the why should he not register
toyota.new-york.ny.us and if the word Toyota is Korean for "my pleasure"
then why couldn't someone register toyota.kamsa.alt for their personal
home page? If Toyota the car company feels this could confuse their
customers then they can go to court. But they have to weigh the possible
confusion against the negative publicity that they will generate by suing.
There is already an Internet cultural habit developping whereby if your
website can be easily confused with someone else's you put a link on your
home page to the other site to make things clearer. I first ran across
this at http://www.apache.com over a year ago and I wouldn't be surprised
for a court to some day find this sort of link to be sufficient to avoid
litigation for trademark infringement in most cases.

> No, you type in the trademark for the truck:
> www.toyota.com.
 
To the best of my knowledge this is not a trademark of the Toyota Motor
Company or any of its affiliated companies.

> >>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.

Politicians and lobbyists. The fact that many of them are lawyers or used
to be lawyers is not relevant to the point.

> 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.

The courts and the police, not the lawyers.


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