George: I disagree with your conclusion about Brian¹s comment. But, let¹s assume you are correct. It is trademark-centric because the TMCH is a tool to assist trademark owners, so by design the TMCH is trademark-centric. As to the superiority of trademarks, I think the terms ³superiority² is emotionally charged and used to illicit a knee-jerk reaction from certain factions within the Internet stakeholder community. In reality, trademarks are terms (in this case b/c word marks are all that is eligible for registration in the TMCH) that a sovereign government (in many cases several sovereign governments) have granted certain protections because the owner of the trademark has successfully fulfilled whatever requirements the issuing government has put in place. They aren¹t necessarily ³superior² but that are not ³on par² with domain names. They are different and should be treated differently in line with established laws and international treaties. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans@adobe.com www.adobe.com On 2/2/17, 9:58 AM, "George Kirikos" <icann@leap.com> wrote:
Hi Brian,
"I agree with the points raised by J. Scott and others: the TMCH is not the place to challenge underlying trademark registrations. The appropriate recourse is to challenge the registration at the appropriate national or regional trademark office."
That's a very TM-centric view of things, which assumes that TMs are inherently "superior" to domain name rights.
Put yourself in the shoes of the "other side". By your "logic", for those who say that domain name rights are "superior", there should be no TMCH at all. Instead, the "appropriate recourse" to a domain name dispute is for the TM holder to challenge the domain name registration in the appropriate national courts.
In other words, there's a double-standard. Domain name registrants are subject to excess scrutiny (i.e. there's no assumption of good faith for them, whereas TMs are always assumed to be "valid", subject to an appropriate challenge in a national court or by whoever granted that national TM right).
If one follows that "logic" to its natural progression, it argues for the elimination of the UDRP/URS/TMCH/etc., and let only the national courts decide everything.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/