Re: Re[2]: IAHC Proposal (Attacks Thereon)

[Kent Crispin <kent@songbird.com>]

Carl Oppedahl allegedly said:
> 
> At 04:00 PM 01/13/97 -0800, Kent Crispin wrote:
> 
> >Carl Oppedahl allegedly said:
> >
[...]
> >The goal of the 60 day wait is to reduce litigation.  Therefore, the
> >size of the problem is precisely the amount of litigation, that is,
> >the dozen of so cases that we know about.

[...]
> I am sorry to say this, but you are quite mistaken as to the goal.  The
> goal is to promote stability of URLs (and domain names).

That's one way of looking at it.

[...]

> And in any event, the number of domain names is indeed a fair measure of
> the size of the problem.  Domain name owners fall into two categories - the
> ones who are are at risk of loss of the domain name and happen to be aware
> of it, and the ones that are at risk of loss of the domain name and happen
> not to be aware of it.  (There is a miniscule third category of domain name
> owners who are not at significant risk, but it is small enough to be
> ignored.)  You are apparently in the second category, and incorrectly think
> you are in the third category.

No, I *know* I am in the third category, since "Songbird" is a trademark 
I own (actually, a service mark).

> It is a rude awakening when you get that nasty letter from NSI, or a nasty
> letter from a trademark owner.  You have evidently not had that awakening.

Nope.

> >Sally used the term "pirates" for these people.  I was following her 
> >terminology. 
> 
> No, she did not.

It would be really helpful if you would simmer down, think for a 
few seconds, and perhaps check your facts.

To quote her letter:

	Another way to spin the numbers would be 
	to start with the 800,000 figure, take 
	away the deliberate "pirates" (some 
	estimates I have seen put that number as 
	high as 100,000),...

[snip]

> >Presumably if they were worried about that they would have done a
> >trademark search beforehand.  
> 
> Sorry, but here is yet another area where it is clear that you do not
> understand the law.

How pleasantly condescending of you...

>  If you pick a word, any word, and do a trademark
> search, you will almost always find one or more trademarks identical to
> that word.  Then (NSI misses this part) you look to see what their goods
> and services are, and what your own goods and services are.  If there is no
> overlap (e.g. fish and bicycles) then you proceed.  The owner of clue.com
> could have done that (indeed, for all I know he did do that) and would have
> found no legal basis to refrain from registering clue.com.
> 
> Perhaps you are under the mistaken impression that the prudent thing is not
> to proceed with a proposed business name (or domain name) if there is *any*
> trademark registration identical to it.  (Anywhere in the world, I guess.)
> In that case, good luck to you.  You could screen thousands of names and
> not be able to proceed, on this approach.

No, Carl, I am not under that mistaken impression.  I have done
trademark searchs, I am quite aware that a conflict in name isn't a
conflict in trademark.  I have done a fair amount of research in this
area, and I know quite a bit about it.

In fact, you are tilting at windmills, and dueling strawmen of your
own construction.  I wish you would stop, because it makes any 
intelligent discussion very difficult.  

> >Absent NSI's policy they would have
> >almost nothing to worry about if a trademark search comes up clear.  A
> >trademark search takes a few days and costs a couple of hundred
> >dollars -- that is a far more reasonable and understandable "insurance
> >policy" than a 60 day wait. 
> 
> Keep in mind that the Internet goes everywhere.  Do you feel that "a couple
> of hundred dollars" will cover a search of all the trademark offices in all
> the places where the Internet goes?  What you propose as "prudent" is in
> fact impossible.

Slow down, Carl.  You know very well that getting a defensible
trademark has never required searching all the trademark offices in
the world.  If that were the case no one would be able to get one.  If
there is no trademark for my name in the area I am doing business, I
may continue to do business under my name regardless of someone's
later desire to get a trademark (though of course my ability to expand
may be curtailed).  And if 1) I have a legally defensible name, and 2)
registrars follow reasonable policies and don't interfere, my domain
name really should be safe.  Don't go off on tangents about possible
exceptions -- we both know there are complicating issues, but this is
the general truth, and you know it. 

The bottom line is, doing a reasonable trademark search *does* give
you some assurance that you aren't using a name likely to cause
conflicts -- that's the purpose of a trademark search.  In fact, if
you have been using the name in trade, you could proceed to get your
*own* trademark.  

A search is relatively cheap, much quicker than a 60 day wait, and
probably provides more realistic protection. 

-- 
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