At 02:05 AM 2/27/99 -0800, William X. Walsh wrote:
>
>On 27-Feb-99 Roeland M.J. Meyer wrote:
>> Well, one thing came indirectly out of the trademark/DNS discussions is
>> that if a TLD name is trademarks, as a TLD name, the root-servers dare not
>> assign it to anyone else. If they did, it would be an infringement. If I
>> registered a trademark of .GOSHALMIGHTY, as a commercial trademark for a
>> TLD, implement same in my private TLD roots, advertise it with my own name
>> servers, and ICANN assigns it to someone else in the root-servers, then I
>> will go talk to a judge and win. I might even get punitive damages.
>>
>> It is arguable that I might even be able to force NTIA to install such a
>> TLD into the roots by court order. But I could certainly prevent it, should
>> I so choose.
>
>I don't know that I agree with this. I've CC'd this to the ifwp list to get
>some feedback there.
>
>I think you would still have to make a case that there is likelyhood of
>confusion, and I think it would depend on the mark. If the mark was very
>generic in nature, I think it would be much harder to make a case for this
>position.
As I said, the mark would be registered explicitly as a commercial mark of
an Internet TLD. Any use of a TLD, carrying such a mark, by someone else,
for any purpose, would be an infringement. Even were it only used as a
private TLD, my name servers would resolve hosts in that TLD, from the
Internet. Entering that TLD into the roots, with anyone else name servers,
would be an unlawful infringement of that mark (IANAL) and an unlawful
interference with my TLD operations. It may even be considered a computer
crime, similar to DNS hi-jacking (redirection) of a dotCOM SLD. Please
remember that ICANN is a private company, not a regulator. It has no power
to pass laws or to regulate, whereas the USPTO *is* such a regulator and
has authority to recognize such a trademark. ICANN would have no choice but
to honor such a trademark. If they should fail to enter it into the root
then they risk fragmenting the root. This would be a violation of their
"stability" charter.
>I doubt punative damanges would come into play unless you could provide it was
>being done with the intent to cause harm to the trademark holder, but IANAL so
>I may be incorrect here. I think this also would be hard to prove.
Entering another owner into the root, for such a protected TLD, especially
once notified of such protection, would be a prime facie case of intent to
disregard the law. Failing to enter such a TLD into the root, upon request,
once NTIA blockage of TLD registrations were removed, might also be
considered harmful, albeit much less clearly so (IANAL). Delaying such
entry is even less clearly harmful.
___________________________________________________
Roeland M.J. Meyer -
e-mail: mailto:[EMAIL PROTECTED]
Internet phone: hawk.lvrmr.mhsc.com
Personal web pages: http://staff.mhsc.com/~rmeyer
Company web-site: http://www.mhsc.com
___________________________________________________
KISS ... gotta love it!
