Re: [At-Large] [GTLD-WG] IRT working group report
At 31/05/2009 09:55 PM, Hong Xue wrote:
At 31/05/2009 02:18 PM, Alan Greenberg wrote:
So advice on the IRT report should not just be a blast against the process, but preferably a substantive critique of the proposals with alternatives if possible.
I fully agree. We should address substantive critique and provide more balanced and reasonable alternatives, if possible, from the prospective of users.
My last post was purely on process, but I do have something to add more on substance. I have read and heard a few things that imply "if it is good for the IP community, it is bad for users". 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. Alan
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.
Neither IP extremism nor anti-IP extremism is in the interests of users. Theoretically trademark protection is for users first and competition second. Trademark counterfeiting is subject to criminal punishment for it is deceptive to the public as well as infringes the private right of the trademark owner. So the issue is reasonableness. I'm not sure if Alan is referring to "domain name law" (perhaps existing in some jurisdictions, Canada? ). If we are the same page and discussing confusing similarity in the ambit of trademark law, then I doubt the reasonableness of precluding an applied TLD string for it is doomed "easily confusing" to users--it's not been used (let alone in commerce). Even if such precluding could exist, it should be limited to a small scope and unfortunately there is no globally recognized well-know mark list to define that scope. Hong ______________________________
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--
Karl make a very good argument here, but it raises another issue. Karl Auerbach wrote: ....
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.
I totally agree. However we need to take that one step further into the cyber realm.
....
Trade and service marks do not exist because of some natural law ... Not correct, but we can take that offline if you are interested :)
The marks are all too often abused to lure the unsuspecting Internet user into believing he/she is dealing with that company. There is no real service or product behind the impostor to that brand, other than a strong desire to defraud the intended victim. On the side of the mark holder, they may not chose to take steps against the abuse of his mark. Taking those steps will cost money. As such they have to weigh the consequences of not taking steps vs the cost of taking steps, a pure business decision. However it does not directly translate into the mark usage on the net. Daily, marks and brands are being abused in scams, many belonging to well known companies, yet the owners do not protect these marks since their clients are not directly targeted. A typical usage would be job scams, escrow scams or advance fee fraud where are mark is repetitively used, many times a complete copy of a website, with the pure intent of defrauding internet users. A good example could be NatWest Bank that was spoofed 424 times for advance fee fraud purposes in the past few years: http://db.aa419.org/fakebankslist.php?psearch=natwest (only listed spoofs we found, many may not be listed) Likewise in no specific order, HSBC 163, London Scottish Bank (now closed) 78, Citi Bank 135 etc times. Interesting point: Many times the spoof domain claimed to be based in a country where that bank has no presence, yet the website clearly showed that bank's logo. In very few of these instances the real bank intervened, only too glad that somebody else was looking into it. To just prove the impunity with which criminals abuse domains; even law enforcement agencies are being spoofed: Interpol - http://db.aa419.org/fakebankslist.php?psearch=interpol FBI - http://db.aa419.org/fakebankslist.php?psearch=fbi United Nations - http://db.aa419.org/fakebankslist.php?psearch=united+nations The mark holders cannot be blamed either. The disproportionate cost of defending a mark v.s. the the cost of a cheap domain with no verified registration data, even free domains, makes this an economically unfeasible exercise and no detriment to the abuser. Sadly legitimate businesses have been forced to close doors due to this very problem. Many victims also exist, having lost their livelihood, and on the odd occasion, their lives to such usage. Regards Derek
Yessir, Karl. Pithy....and very informative. Carlton On Sun, May 31, 2009 at 11:34 PM, Karl Auerbach <karl@cavebear.com> wrote:
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--
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participants (5)
-
Alan Greenberg -
Carlton Samuels -
Derek Smythe -
Hong Xue -
Karl Auerbach