{ Date: Thu, 4 Feb 1999 09:17:15 -0800
{ From: Kent Crispin <[EMAIL PROTECTED]>
{ > 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.
I guess by overlap you mean some trademark holders have registered domain
names - of course, and some DN registrants have real live businesses
which have nothing to do with the net. But I supposed I should have made
it clear that I was transforming 'trademark holders' and 'cybersquatters'
which are fairly exclusive sets.
Giving them 'placeholders' is no more disguise than algebra is arithmetic
disguised; in fact its a standard technique for getting ones head around
concepts in a different way -- indeed, in the same different way that
giving things *names* creates new concepts... (not new *things*, note).
But carrying on nonetheless...
{ ... 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.
Are we trying to fit net governance into some notion of current social
reality, or are we trying to *project* a social reality in which net
governance makes some kind of sense?
{ 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 it appears ;-) but two or three years of bumbling ad-hoc judgement do
not a policy make. But it gives me an idea: why not decree that TMs when
used as DNs must carry the marca registrada?
{ So, point 1: The trademark name space and the domain name space
{ overlap legally. This is fact.
{
The law is an ass.
{ 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.
If youre saying theyre trying to have their cake and eat it too, I
entirely agree. One might suspect, in fact, that they plumb forgot what
trademark meant (in terms of the intrinsic limitations), and now theyre
trying to recover by misdirecting hours of discussion which could be
going to more significant things.
{ Corollary: The arrival of the Internet forces the problem of
{ international trademark disputes down to very small scale
{ businesses.
Moreover, it produces potential conflicts between the multitudes of TMs
which happen to be the *same mark*, but which have coexisted peacefuilly
for years within their respective spheres of trade and geography.
{ 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.
My first reaction is that the TM issue should be retroactively disowned
by any DNS policy: let em sort out their own troubles first, and then
let's see.
Knowing full well that wont happen, I have another idea: along with
registration marks, decree 'geographical' symbols as well, so that united
(r)(usa).com is distinct from united(r)(fr).com. The phone companies
managed to do it; whats so special about DNS?
Cheers,
kerry
