Martin Schwimmer wrote:
>When "TM Interests" "equate" DNs and TMs (I use quotes to indicate I don't
>endorse that phrasing) I don't believe that, if they thought about it, they
>would disagree that the DNS system and the TM system are different systems
>with different purposes.
>Nevertheless, at least in the context of commercially oriented web usage,
>the rise of the amazon.coms, marketwatch.coms, ebay.coms, etc., illustrates
>that the market has voted to equate domain names as used with trading names
>and trademarks. Thus the conflict and the oddity of TM lawyers and techies
>have these discussions on the IFWP list.
I believe this is an overstatement. Rather, the market has chosen to identify certain
domain names as trademarks, just as certain other words, catch phrases, symbols, or
anything else can be a trademark.
I do not think that anyone seriously disputes that a domain name can be used as a
trademark, anymore than 800-THE-CARD can be trademarked, or the acronym IBM can be
trademarked. But this does not mean that all domain names are trademarks, or that the
DNS system must make adjustements for trademarks. By analogy, not all telephone
numbers (or even all toll free numbers used in business) are trademarks. Nor does
anyone suggest that the telephone system must make adjustments for trademarks.
>The conflict can be ameliorated at least through through various tweakings
>of both the DNS and the TM system (and in the behavior of DN and TM
>owners).
Again, this is based on the idea that there is a conflict which must be modified by
making adjustments on all sides. I argue that this is a flawed understanding.
Rather, the existence of the DNS is a fact to which trademark law must accomodate
itself, as it did to such diverse things as telephone numbers and other identifiers.
As an aside, I will add that TM law seems to be adjusting just fine, with no need for
any raidcal adjustments on anyone's part.
Harold Feld
