On Wed, Feb 03, 1999 at 10:46:00PM -0400, Kerry Miller wrote:
> weve got group A, which has physical-world connections which we might
> call 'fundamentals': trade, goodwill, inventory, etc etc. Weve got group
> B, which has virtual-world connections to certain domain names.
At first I wanted to say that the overlap between these two groups is
profound.
But on second thought there is a far more fundamental problem with
your analysis: simple grouping like this is just a disguised form of
"we" vs "them", and the rest of your discussion is a series of
justifications for this essentially meaningless dichotomy.
But carrying on nonetheless...
> The As now
> seem to be trying to define *all domain names as important, *all domain
> names as trademarks, *all names as 'identities'
You might see it that way. Another characterization might be that TM
interests have noted that under current social reality domain names
have value as advertisment, and also that the DNS, in conjunction
with the web, functions partly as an advertising medium. And
therefore, use of names in that advertising medium does in fact come
under the purview of TM law. This is all fact. Trademarks do
appear on the net; trademarks do appear in domain names.
So, point 1: The trademark name space and the domain name space
overlap legally. This is fact.
The TM interests, however, have noted another fact -- the Internet is
intrinsically global. More than that it's the first international,
global ADVERTISING medium readily available to small players -- the
first international, global medium USED IN TRADE that is available to
millions of tiny businesses all over the world. As soon as one of
those tiny businesses puts itself on the web, it is advertising all
over the world, and its trade name is now ranging very far from the
tiny area it was born in. The geographical constraints that
protected it from trademark conflicts have suddenly been breached.
So point 2: Independent of any non-trade use of domain names, the
Internet creating a massive arena for trademark conflicts.
Corollary: The arrival of the Internet forces the problem of
international trademark disputes down to very small scale
businesses.
Corollary: Some recognized form of cheap international dispute
resolution system for small players is highly desirable. The fact
that it will be cheap for large players is irrelevant -- the large
players could always afford to go to court.
[It's important to realize that cheap arbitration benefits small
parties far more than large parties -- large parties have always been
able to go to court.]
[...]
> OK, so maybe some sort of law-n-order has to come to the virutal
> frontier -- but being an A here has no 'standing' *except insofar as the
> As say it has*.
This is simply incorrect, as numerous court cases have already
demonstrated -- TM holders do, in fact, have standing in domain name
cases, period.
> So we have a choice: we can accept that the whole global shooting match
> is commercial; that individuals have no rights even to their own names;
> that every word in this message is liable to payment of royalties -- or
> we can preserve the commons (for once!) and develop a Code of Virtual
> Commerce which says, we're sorry you were operating under an illusion and
> that you spent so much money to 'protect the identity of your real
> business,' but ignorance of the *nondiscriminatory* nature of information
> is no excuse. Keep your trademarks where they are *really relevant.
The space of choices has rather more dimensions than you indicate.
--
Kent Crispin, PAB Chair "Do good, and you'll be
[EMAIL PROTECTED] lonesome." -- Mark Twain
