>We have no proof that trademark owners will honor gTLDs as a qualifier any
>more than they honor the Lanham Act's requirement that, to prove a cause of
>action for infringement there must be a) commercial use and b) confusion as
>to the source of goods or services. So the core problem is the trademark
>owner's insistence that a domain name (absent contextual use) = source (of
>goods or services).
Which is why I suggest a commercial/non-commercial distinction for TLDs,
and declarations of intended use, which would provide context. - note, I
don't agree with all of Ellen's over-generalizations.
>In traditional commerce, identical marks can co-exist so long as they are
>used in different market channels. I've often wondered why TMOs with
>identical marks aren't battling amongst each other for priority rights to
>specific, desirable domain names.
they do. see juno.com.
If they promote the notion that a
>trademark registration entitles the owner to exclusive worldwide rights to
>a name, that entitlement would accrue to all those who share the same mark.
???
>The answer, presumably, is to invoke first come, first served when it
>suits their needs but ignore the substance of RFC 1591 when it doesn't.
>
that's sort of misstating the argument. Priority, aka, first come, first
served, remains one of the two essential principles of TM dispute
resolution - the other being confusing similarity. The problem comes in
conflicting interpretations of the universe where someone has "come first."
The TM owner's position is: there's no such thing as TV priority, radio
priority, why should there be internet priority - so Panavision sez it came
before Toeppen, and Juno Lighting came before juno online, MTV Networks
came before Adam Curry, etc.
>
>How I wish that the senior owner of a trademark would take an identical
>trademark owner to court claiming priority rights to an identical mark used
>as a domain name. Surely this would expose the fallacious thinking that has
>caused so much grief for so many legitimate domain registrants.
Juno.com, prince.com, epix.com.
