Danny, thanks for bringing up this talking point, as it has been a great interest of mine since the beginning. I think we've even quietly and cordially discussed this issue before. I do think that this talking point is something worth visiting. However, I think the UDRP, as devised, clearly states the intent of registering domains vs trademarks. I also think the UDRP is greatly misinterpreted by 'legal types' (ie: attorneys, judges, legislators, et al) because their interest lies in a different realm of reality. You may be able to enlighten me further as I don't have the time to research it and you are the expert, but as I remember there are many requirements of a trademark actually being legitimate property, which include geography and the use of the property (Apple vs Apple being a good example). As a reference, I copied the following: USPTO: "A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name." UDRP (as interpreted by internic): "...the trademark holder must establish (1) that he has a legally recognized trademark in a name that is identical or confusingly similar to the domain name; (2) that the current registrant of the domain name has no legitimate rights in the name; and (3) that there has been some evidence of bad faith or abuse." (As I remember, there used to be a 4th requirement, and all 4 had to be met for a valid complaint). Personally, I cannot think of a single example of actual trademark infringement based on registering a domain, though I concede that the courts have ruled differently, and 'bad faith' has occurred. This is what I mean; a domain name is not inherently similar to any other product or service being offered elsewhere. Take Coke for example, they own the patents to and license the manufacture of cola sold under the brand of Coca-Cola worldwide, which is in no way similar to coke.com or cocacola.com or coca-cola.com. They are different in every way, first of all I can't drink the domain name nor can I purchase it at a vending machine nor can I put Mentos in it to create fission. The domain is simply a method of communication, not a cola (different use of the mark). What then, gives them the right to think they own the aforementioned domains? It is very simple, a domain is not similar to a cola in any respect. The laws were originally established in this way in order to inhibit monopolistic practices. It is my opinion that domain names are more similar to an "original work", or "any type of expression independently conceived by its creator. As long as a particular expression has been independently created, it need not be original in the sense of 'new." (NOLO.com). Let's say I draw a picture of a bottle of Coca-Cola, should it be in Coke's right to sue me for infringing on their trademark? What if I just type their name in this email, should they be able to sue me for infringing on their trademark? I'm sure if the RIAA had any say, they would. On the other hand, who is to say that cocaco1a.com would be used in bad faith, or who is the rightful owner, or to whom it is to be registered? The sunrise policies for new TLDs allow for valid trademark holders to have the opportunity to register 'their' domain before others have a chance. I feel this is a valid and reasonable allowance for those who, in my opinion, hold trademarks in more than one state (meaning nation, rather than province). I one time had a discussion with one of the authors of the UDRP who had assured me that my viewpoint on this subject was valid. I think what we all ask, is where does one draw the line? In my opinion, the 'bad faith' issue is the line in the sand, but how one determines bad faith is being increasingly ambiguous in case law. It is all too common for the line to be drawn on the side of money and power, as case law has clearly shown. One thing in my mind stands clear, is that the intent of legislation changes with every generation. Our current generation (in America) is becoming more imperialistic and socialized, whereas previous generations have been more liberal yet discriminatory. What I mean by this is that the freedom to assemble used to be righteously defended, so long as you did so with the same race of people. Nowadays, there is no right to assemble, but if you did, you could not discriminate upon race or sex, so long as it's not all white males, other than at the capitol building, and certainly not at 3:48am. Likewise, the freedom of expression used to be staunchly defended, and today political correctness is staunchly defended, which are two entirely different approaches. If the Internet is to be here for generations to come, then we must look above the current state of affairs and see the long-term effects of how things are. Aloha, Randy Glass A@L On 5/5/07, Danny Younger <dannyyounger@yahoo.com> wrote:
[excerpt] "The main problem for companies seeking to protect their brands is cybersquatting, the unauthorized use of a trademarked name in a domain pointing to a site that isn't owned by the trademark holder. MarkMonitor found more than 286,000 instances of cybersquatting for the 25 brands it studied -- an average of 11,400 instances each."
Complete article here:
http://www.sci-tech-today.com/news/New-Study-Looks-at-Web-Brandjacking/story...
The UDRP is obviously of limited value given the current reality... it's time that we started looking at either a revision of the UDRP or at an alternative. I am aware that both the Business Constituency and the Intellectual Property Constituency have recently been considering rapid take-down plans (in fact, the .xxx proposal also planned on utilizing rapid take-down (based on the DMCA model)).
What approach to this issue does the At-Large community recommend?
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