Re: Trademarks, random strings, sharing, reserved words

[David Collier-Brown <davecb@Canada.Sun.COM>]

Kent Crispin wrote:
> Let me ask a question:  Suppose I decide to name the machines on my
> network after soft drinks -- I have pepsi.songbird.com,
> coke.songbird.com, sprite.songbird.com, drpepper.songbird.com, etc.
> In fact, it would be less than an hours work to set up
> www.pepsi.songbird.com and all the rest, and have them live on the
> internet.

	Depends on its effect and your intentions, which ends
	up referring back to the purpose of the naming system,
	navigation.

	If I were a directory company and referred people
	to coke when they asked for pepsi, Pepsico might
	well sue me, possibly on the grounds that I'm using
	their trademark to deliberately misdirec their customers.

	If I instead was a restaurant critic and used their
	name to make a (fair) comment on their product, I doubt
	if they'd be able to act.  Or at least to get a ruling
	in their favor...


	Domain names are addresses (as opposed to routings), with
	a distinct hierarchical structure.  . -> com -> pepsi
	is how you get to a company named pepsi.  . -> com ->
	songbird -> pepsi is how you get to a company named singbird
	named pepsi.  (which isn't a sentence).  

	Because the latter is nonsensical (ie, it's not a route
	to anything that pepsi **is**), it's obviously not a route
	to the company named pepsi that I was looking for.

	On the other hand, . -> int -> tm -> bev -> pepsi is
	clearly a route to the holder of an international trademark
	for a beverage called pepsi, and If I registered that one,
	pepsico would go ``eek'' and send me a letter (:-))

> Would this be a trademark infringement or dilution? 

	Alas, that's a question of common law, not of fact.
	All we can do is make decisions re facts, and expect
	that over time, a court of competanty jurisdiction will
	take cognizance of the facts and rule on the need or
	non-need of a trademark holder to defend their name in
	a context that is clearly not intended for such a 
	purpose,and (i | is not) then actually used for the
	purpose intended.

> So, an "unlimited number of possible infringing domain names" is a
> *good* thing for almost all trademark owners, because it makes it
> completely and transparently clear that domain names really are a
> different realm, so completely and transparently clear that reasonable
> laws will be drafted and reasonable precedent will be established
> regarding the relationship between domain names and trademark.

	Alas, I think offering a set of synonymous domains would
	encourage trademark conflicts, and cause more suits than
	less.  Assuming, of course, that any trademark holder
	would risk registering in a synonymous domain and being
	the very first to be sued to extinction by an **enraged**
	famous-mark owner!

--dave
-- 
David Collier-Brown,  | Always do right. This will gratify some people
185 Ellerslie Ave.,   | astonish the rest.        -- Mark Twain
Willowdale, Ontario   | davecb@hobbes.ss.org, canada.sun.com
N2M 1Y3. 416-223-8968 | http://java.science.yorku.ca/~davecb