At 01:21 PM 2/27/99 -0800, you wrote:
>At 11:57 AM 2/27/99 -0800, Bill Lovell wrote:
>>At 03:00 AM 2/27/99 -0800, you wrote:
>>>To my previous message,
>>>
>>>One particular point I might add, this puts a pretty serious dent in the
>>>argument that domain names aren't owned. They are owned in the same sense
>>>that trademarks are owned, especially if they are also trade marked,
>>>whether in common law or registered with USPTO. It appears that domain
>>>names are owned after all.
>>
>>Indeed, even more so. The case law says that trademarks are NOT property.
>>Their purpose is to benefit the consuming public, not the trademark "owner."
>
>Okay, so the dent goes the *other* way. I always thought that, as the
>holder of a registered trademark, I "owned" that mark. In what way do I not
>own it?
>
Anything that can be "owned" is property. A trademark registration is more
like
a contract with the world: "for the opportunity to prevent others from
using this
mark, I promise to police it and make sure that no one else uses the same mark
on the same goods and services, which could cause confusion amongst all you
folk." Similarly, a patent says that for the opportunity to prevent others
from making,
using or selling this technology during my little place in the sun, in this
patent
application you will find a complete description of the invention, so that
those "of
ordinary skill in the art can make and use the same," i.e., after the
patent term
terminates and the technology falls into the public domain. A distinct
difference
between the two is that patents, like copyrights, have Constitutional
support; a
trademark does not. Patents and copyrights are property because the owners
thereof have created something new in the world; trademarks AS SUCH are not,
although a neat new logo or whatever might also have copyright protection, but
it would the copyright, not the trademark, that has characteristics of
ownership.
The trademark imposes duties of performance that neither patents nor copyrights
impose, and are only acquired (this is all U. S. law, of course) by ACTUAL USE
of the mark in commerce; the trademark registration itself neither adds to nor
detracts from whatever trademark "rights" might already exist under the common
law, except in terms of evidence. Those duties also include that of
maintaining
the quality of the goods sold under the mark: the consumer has a right to get
what was expected when the purchase was made on the basis of the mark.
Paul Revere's stamp was on all of his silver works, and the "guild" tradition
extends back to England and even further back from there to Italy. The mark
is not owned, but one has a hard earned "license" to use it.
Bill Lovell
