At 11:52 AM 2/15/99 -0800, you wrote:
>Hello Kerry,
>
>You are being web-centric here. A huge number of domains have no web-pages
>(mostly in NET, YMMV). MHSC owns three of them. For those domains, the only
>way you can determine charter compliance is by reviewing the business plan.
>This cuts to the core of the implementation issues. It also cuts to an
>essential issue regarding trademark infringement. A pure host site
><xyzzy.ibm.tld> can neither prove infringement or non-infringement, iff
>they have no web-pages.
>
It having been decided that the mere registration of a domain name by
NSI does not constitute "use in commerce" so as to trigger the possibility
of trademark infringement, I am presently trying to get a similar ruling as
to the party at whose request the domain name was registered. In light
of the Toeppen "cybersquatter" cases, however, I suspect that a "pure
host site" would indeed be a use in commerce, even without the crass
motives of a Toeppen, i.e., there would be an argument on the basis of
a contributory infringement theory that the host contributed to any
infringement by the ultimate user of the site. (I'm not saying that the
argument would be correct; I'm merely suggesting that it would be made.)
This situation would be distinguishable from that of an ISP who was sought
unsuccessfully (thank heavens, I might add!) to be held responsible for the
content of messages on its newsgroups -- an ISP could not possibly police
all that, but the argument would be made that a host site for web pages
might have a higher level of responsibility. That same whole analysis
would apply, I suspect, to issues of libel as well as those of trademark
infringement.
Bill Lovell
