Re: Trademarks, random strings, sharing, reserved words

[Albert Tramposch <0002082489@mcimail.com>]

Kent Crispin wrote:
>The real goal here should be to make domain names *completely
>independent of trademark*, not establish policies that mix them in
>that legal morass.

Unfortunately, IAHC does not have the power to make this pronouncement;  nor
does any other single entity that I am aware of.  It could only be done by
treaty among the nations of the world, which is a process that would take years.
In fact, even if a diplomatic conference were to be convened to discuss such a
treaty, the result you prefer would be unlikely, since the governments of those
nations would be asked to voluntarily subvert rights they have themselves
created.

I am not at all clear, either, as to the benefit of severing any link
between trademark law and domain names.  Trademarks are meant essentially to
create some order in the market place;  to create a reliable link between a
service or product and the source of that service or product, for the protection
of the consumer, who wants to know how to obtain good products and services in
the future and avoid bad.  Why is this less important on the Internet than
elsewhere?  In some ways, it may even be more important, because of the relative
anonymity of the sources of information on web pages.

Some have asserted that domain names are not trademark-like, since they are mere
addresses;  for example, a person cannot be sued for trademark infringement
based on the street name where he lives.  The difference here is that we do not
choose our street names, but we choose our domain names.  A domain name performs
an identifying function in two ways:  first, it is the string that connects the
user's computer with a desired web page;  second, it is often chosen to reflect
the content of the web page (we find the altavista search engine at
"altavista.com", not at "12 Rheingold Ave.com").  It is the latter function that
carries trademark significance.  Domain names cannot be separated from trademark
law unless that latter function is given up (which is the argument for going to
pure number domain names, a possibility which is no longer considered
realistic).


>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.

I don't see how it does this at all.  Is there any legal difference between
trademark law with respect to one TLD and trademark law with respect to 1000
TLDs?  The only difference in my mind is the practical possibility of trademark
owners policing the space.  IMHO (and mine only), if the number of TLDs is
infinite, the only new laws that will result will be ones that require
domain name registrars themselves to check for conflicts with trademark (and
other) rights before registering a domain name, and to make them liable if they
do not do so properly.  Remember that trademarks are nationally-created rights,
and if they are threatened wholesale, as such a proposal would do, the national
legislatures will impose legislation to protect that class of rights.  It is one
of the goals of the IAHC draft to prevent, to the extent possible, the need for
such intrusive legislation, and to reduce (not expand) the possibility of
registry liability for trademark conflicts.


Albert Tramposch
WIPO
IAHC member
speaking very much on my own behalf