Re: Trademarks, random strings, sharing, reserved words

[Kent Crispin <kent@songbird.com>]

Albert, thanks for your thoghtful response

Albert Tramposch allegedly said:
> 
> 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;  

It certainly does -- note the word "goal", above.  The wording could 
be something like this:

"The IAHC recognizes that Trademark law sometimes intersects domain 
names.  However, domain names are inherently trans-national, and 
Trademark is inherently localized.  Therefore, IAHC intends to follow 
policies with the long term goal of making domain names orthoganal to 
trademark issues."

[...]

> 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.

It is less important, because, with the exception of a very few 
names, trademarks are local, and domain names are international.  
We've been so many times through these examples: "united.com" -- united 
airlines?  united van lines? etc.  These are *big* companies, but 
they don't have the worldwide name recognition that *any* domain name 
gives -- even if the name is "united.sf.ca.us", it is still visible 
worldwide.  And what does "united" mean to someone from Turkey?  And 
which nations laws have jurisdiction?

> 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.

Years ago, shortly after I graduated from college, I spent a summer
in England.  I and some friends lived in a house that had a name -- 
it was called "Koniston", and that was how it was addressed:

Koniston
2354 Kingsmeade Way,
High Wycombe, Bucks.

The municipality picked part of the address, the homeowner picked
Koniston.  As far as I know, the homeowner could have picked "Pepsi"
without fear of trademark infringement.

It is exactly the same with domain names -- I decide to live on .com 
street, and I pick my name.  Of course, there are 600000 other names 
on .com street :-)

> 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.

This doesn't make sense.  You said earlier that we couldn't get 
international recognition of DNS as a trademark free zone because of 
the international cooperation required.  Now you are saying that we 
*are* going to get the international cooperation required to force 
*all* prospective domain owners to check rights etc?

I don't think so.  I think it is more likely that a national court
would throw out a claim of trademark dilution against some company
based on the existence of the domain name in some other national
registry.  That is, Coca-Cola shouldn't have to defend itself as far
as trademark dilution because of the existence of coke.com.co. 


> It is one of the goals of the IAHC draft to prevent, to the
> extent possible, the need for such intrusive legislation, 

I just don't think such legislation is likely, because it will 
quickly become apparent that it is absurd -- like the California 
legislature saying that all companies offering products on the Web 
must comply with California laws regarding disclosure.  In the short 
run there will be such laws, because local lawmakers are slow to come 
to grips with the realities of the net.  But in the long run there 
will *have* to be international agreements.  And in that arena, I 
much prefer an interpretation of domain names that treats them as 
addresses.

> and to
> reduce (not expand) the possibility of registry liability for
> trademark conflicts. 

Registry liability is not an issue.  I think it has been abundantly
demonstrated that all that registries need to do to avoid liability is
file the equivalent of an interpleader. 

-- 
Kent Crispin				"No reason to get excited",
kent@songbird.com,kc@llnl.gov		the thief he kindly spoke...
PGP fingerprint:   5A 16 DA 04 31 33 40 1E  87 DA 29 02 97 A3 46 2F