IMHO, this post just highlights the absurdity of all our discussion on
the interface(s) between domain names and trademarks. From Bill
Lovell, we have that trademarks are not property (according to the 9th
circuit, but not necessarily according other circuits).
>From Clare Wardle, we have that trademarks are property.
Any day, we will get a post from someone in a civil law jurisdiction
who will weigh in with the state of the union in their neck of the
woods.
Domain names are international in scope. Trademarks (despite the best
efforts of many nations and years of negotiations) are not. Applying
existing trademark law (especially the lovely uncertainty of the
difference between Famous Marks and well-known marks) to domain names,
except on a case-by-case basis in a court of competent jurisdiction
just doesn't make sense.
Sure the trademark holders have a problem. But here is not the place
to attempt to solve it. Get laws passed, treaties signed, etc. Then
come back and tell us what the law is (but we will probably already
know <g>).
[EMAIL PROTECTED] wrote:
>
> Bill Lovell wroteAt 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."
>
> I don't know about US case law, but under English law trade marks most
> certainly are property. They are part of that great division of property,
> Intellectual Property. Even in the US they (like domain names) seem to
> have the key attributes of property: they can be bought, sold and licensed.
>
> It is true of course that one of the justifications for various parts of
> trade mark law is that allowing the owner of a trade mark to enforce it
> protects consumers from fraud and deception. Looked at another way, the
> trade mark owner is generally allowed to protect the goodwill he has in the
> mark against being "ripped off". There is a large and complex body of
> legislation and case law on this in most jurisdictions of the world, and
> the answers although similar (due to the great harmonisation efforts of
> WIPO and others) do differ, particularly between common law and civil law
> jurisdictions.
--
Dan Steinberg
SYNTHESIS:Law & Technology
35, du Ravin
Box 532, RR1 phone: (613) 794-5356
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