Your unscientific study had a combined tort number of 50%. Projected
against NSI's numbers that would yield over a thousand torts in three years
of .com domain registration. How did so many people get the wrong idea
about your study?
Here's the thing - in the context of the tm/dn dispute, the issue is
cyber-piracy and cyber-squatting. There may not be uncontested precise
definitions, but the number of court cases rendered in a short period of
time creates the presumption that there are such torts, and that they are
larger than the traditional concept of infringement. In fact, if your
study did establish something, it is that the tort of cyber-squatting is a
much larger tort than traditional infringement -
but nobody remembers that - they only remember the small percentage - how
did so many people misundertand you? Could you have had something to do
with it?
I know the domain names I listed are on your list. All the examples I took
are off your list. My reference to burger.king.co.uk had a mistake in that
I typed "left out of the study" instead of "left out of the definition of
infringement" (and, implicitly, out of the definition of the problem).
My point is that your treatment of obvious cyber-squatting cases under the
more palatable name of speculation is a deliberate attempt to minimize the
scope of the cyber-piracy problem. Your unscientific sampling of 121
"cases" consists of 60 cases of infringement plus speculation. You needed
to exclude cases like aircanada.com or britishairways.com or ussteel.com
from the definition of cyber-piracy so when you projected the number
against the NSI stats you would get a number in the hundreds rather than
the thousands.
People remember the <less than 1% number> without realizing how you have
sliced out cases which are obvious torts (under your citation of the
panavision.com case which was decided under the dilution theory - the UK
tort of passing off is not equivalent to the US cause of infringement).
But how you attempt to explain your statements that TM owners abuse the NSI
process more than are abused by pirates, when even your unscientific
sampling came away with 50% infringment plus dilution? The owners of the
CRATE AND BARREL, MARKS AND SPENCER and THE NEW YORKER trademarks were
ahppy about what happened?
And when DNRC gave the low infringment number to Congress, they certainly
didn't indicate that they were relying on a study which defined
neiman-marcus.com and crateandbarrel.com as speculation and not
infringement. When you gave interviews, did you emphaszie the 50% tort
number?
and how are porsche.com and mikasa.com string disputes? shaniatwain.com is
a string dispute?
and ringlingbrothers.com was not a parody case. under jewsforjesus.org it
sounds like infringement. the point that a party claimed a defense,
doesn't mean it wasn't infringement.
When Prof. Froomkin critiques the WIPO study, he recognizes the rights of
differing parties, and provides suggestions designed to create a fair system.
You attempt to re-define the problems of one side out of existence.
No thanks.
At 09:35 PM 3/1/99 -0500, you wrote:
>This is getting embarassing.
>"aircanada.com" is on the list. It was counted, and classified as
speculation.
>Result: F (original registrant retains name, without litigation) Toeppen
still
>had the resgitration at the time of the study. This may still be the case.
>--MM
>
>Martin B. Schwimmer wrote:
>
>> or aircanada.com?
>>
>> At 05:56 PM 3/1/99 -0500, you wrote:
>> >
>> >
>> >Martin B. Schwimmer wrote:
>> >
>> >> One of the reasons that Mueller's study is not worth the storage
space it
>> >> takes up is that he presumed to categorize cases based on an incomplete
>> >> knowledge of the facts (and law) involved. I mean, how many final court
>> >> decisions did he use in his study (not that final court decisions
give the
>> >> definitive facts but they do give the definitive law).
>> >
>> >We're all still waiting for you to contest a single one of those
>> >classifications.Is Pokey.org a string conflict as I defined it, or not?
How
>> >about zippo.com?
>> >How many final court decisions did we use? All of them that were
available.
>> >
>> >By the way, all knowledge of "facts" is incomplete.
>> >--MM
>> >
>> >
>> >
>
>
>
>
>
