Roeland M.J. Meyer wrote:
> The problem, as Vint Cerf has recently highlighted, is that DNS and
> trademark law are fundamentally incompatible. One simply can not have
> multiple references for the same name, unlike in trademark law, because
> geo-political proximity issues, a compromise which much trademark law is
> based on, are eliminated by the Internet itself. The only solution possible
> is that trademark law can not apply to DNS entries a priori. They must be
> adjudicated ad hoc.
I saw that statement by Cerf and recognized it as the opening line of a
recent WIPO draft.
I'm starting to think the use of "incompatible" is a poor choice of
words, laden with the TM industry's apparent desire to "harmonize" the
DNS with TMs and thus rectify the "problem," like repairing a broken
marriage.
As we can see, that apporoach undermines modern norms of free
expression, and risks reducing the DNS into an agent of the advertising
industry's quest for irrevocable mindshare. The DNS and TMs were never
the same; there's no call for pairing up DNS and TMs according to some
pre-set formula of string matching.
I think it might be better to say that the DNS and TMs are not
conflatable. They can not be fused. If they can't be, why try?
It's not as if I don't see the problem. The Internet facilitates all
sorts of abuse and indirection, making it far too easy for TM holders to
get ripped off by wicked opportunists. Those same abusers ultimately
mislead consumers and average folks. Regular people certainly deserve
some protection.
To the extent domain name strings represent intellectual property, so do
trademarks; I can accept the TM industry meriting status as a class (if
classes are used) in DNSO membership arrangements. But one would hope
that such status would be used in ways that reduce confusion without
impeding reasonable expression.
Craig Simon
