Alan Greenberg wrote:
This may be correct with respect to registrants and privacy. I am not an expert in these matters, but it seems to me that from the point of view of not confronting users with domain names that are easily confusingly similar to others, the needs of real end-users and IP holders may well be quite complementary.
Don't forget that trademarks are a consumer protection device: they are created by the law so that consumers can identify products and services and distinguish those products from competing products and services. Thus trade/service marks are generally a good thing - You and I might desire that we might want to avoid "GM" automobiles and buy "Honda" automobiles; the marks "GM" and "Honda" help us turn our preferences into reality. Trademarks exist to enable the public to use words in a way that designates a particular product or service, it does not require that the public actually use a given word in the way that the product vendor might desire; a trademark does not constrain the public's' use of language, it only constrains other vendors from using the trademark on their own products. Trade and service marks do not exist because of some natural law or because some God carved them as an 11th Commandment into a stone tablet. No. Trademarks exist because we, the public, via our legislatures, decided that it would be a good thing for the public if vendors could mark their goods and services with trustworthy indicators of the source of those goods and services. You and I are perfectly free to go onto a restaurant and order a "coke" as a generic word. In order to prevent the generic-ification of the trademark "Coke" waiters are taught to respond "No Coke, Pepsi?" And I am sure that you, as do I, refer to junk e-mail as "spam", an arguably famous (particularly among us Monty Python fans) trademark on a "meat" product. As Humpty Dumpty asked - who is the master, you or the word? If a large part of the public chooses to use a particular word or phrase in a way that identifies a *class* of goods or services rather than a particular one then that word or phrase can cease to be a trade or service mark. That happened with "asprin". And we are all watching the noun (and trademark) 'Google' become the generic (and non-trademark) verb 'google' as more and more people use that word to refer to any web search whether it is done via the Google Corporation or not. When a word or phrase is being used for a purpose other than to identify or distinguish a product then that word or phrase is simply outside of the scope in that word or phrase can be trade or service marks. The elected Congressman from a district next to mine is named "Mike Honda" - and the Honda automobile company can not evict him from his name because his use of his name is outside the context of identifying a product or service. The trademark bar is trying to make us believe that domain names always identify a product or service and thus, if the domain name contains a word used as a mark, that domain name must necessarily be infringing on that mark. That is, of course, utter rubbish and a stretch of trademark rights well beyond the purpose for which they exist. In Los Angeles every hamburger and hot dog stand says that is famous. Apart from Tommies and Pinks I doubt that most of those claims can stand scrutiny. But the egos of owners are always large just as the egos of domain name owners are large - in their eyes their name is always "famous". Those trademarks that globally recognized or famous gain recognition and fame not from a claim of famosity but because the public recognizes those names and imbues fame. Yet, like hot dog and hamburger vendors in LA, that does not stop trademark owners from claiming famosity. What the trademark protection bar is trying to do via ICANN is to go well beyond that consumer-protection notion and to, instead, create a new regime in which words and phrases are effectively ownable in all contexts, commercial or not, whether they identify and distinguish a given product or not. And the trademark interests desire to implement via ICANN an enforcement system that replaces our existing systems of fairness, deliberation, and conformity with the basic purpose of trademark law with a system of cheap speed and a prejudice in favor of the mark holder. The intellectual property protection bar is like kudsu - unless it is fought and kept within proper bounds it will eventually cover everything. I oughtta know, I am a member of that bar. --karl--