>Return-Path: <[EMAIL PROTECTED]> >Delivered-To: [EMAIL PROTECTED] >To: [EMAIL PROTECTED] >From: [EMAIL PROTECTED] >Subject: BOUNCE [EMAIL PROTECTED]: Non-member submission from [Michael Heltzer ><[EMAIL PROTECTED]>] >Date: Tue, 15 Aug 2000 09:38:18 -0400 (EDT) > >>From [EMAIL PROTECTED] Tue Aug 15 09:38:17 2000 >Return-Path: <[EMAIL PROTECTED]> >Delivered-To: [EMAIL PROTECTED] >Received: from intamail.inta.org (mail.inta.org [207.237.47.2]) > by ns1.vrx.net (Postfix) with ESMTP id E8F1FF05D > for <[EMAIL PROTECTED]>; Tue, 15 Aug 2000 09:38:14 -0400 (EDT) >Received: by mail.inta.org with Internet Mail Service (5.5.2650.10) > id <QXMB72ND>; Tue, 15 Aug 2000 09:38:00 -0400 >Message-ID: <[EMAIL PROTECTED]> >From: Michael Heltzer <[EMAIL PROTECTED]> >To: intanet-l <[EMAIL PROTECTED]>, > "'[EMAIL PROTECTED]'" <[EMAIL PROTECTED]>, > "'[EMAIL PROTECTED]'" <[EMAIL PROTECTED]>, > "'[EMAIL PROTECTED]'" <[EMAIL PROTECTED]> >Subject: >Date: Tue, 15 Aug 2000 09:37:51 -0400 >MIME-Version: 1.0 >X-Mailer: Internet Mail Service (5.5.2650.10) >Content-Type: text/plain; > charset="iso-8859-1" > >On June 13, 2000, the owners of the domain name Diamond.com filed a lawsuit >against the owners of the domain Diamonds.com in the Southern District of >Florida, alleging unfair competition and defamation. Specifically, the >owner of Diamonds.com published an article on the web which analyzes the >future of the B2C business model in the jewelry industry on the web, and >stated that the owner of Diamond is "in our opinion illegally and unfairly >encroaching on our proprietary use of Diamonds.com as a consumer site for >and about diamonds." > >Commentators have mischaracterized this action as a cybersquatting action >under the Uniform Dispute Resolution Policy or under the Anti-Cybersquatting >Act. However, this is basically a trademark lawsuit involving domain names >and is essentially a cyber-turf battle for the exclusive right to use the >word diamond in the domain name for purposes of retail diamond sales. The >fact that a lawsuit contains a dispute regarding domain names does not mean >that the suit necessarily deals with the issue of cybersquatting. > >The unfair competition portion of the lawsuit will ultimately turn on the >issues of whether the domains Diamond.com or Diamonds.com are protectable >service marks, and if so, whether there is a likelihood of confusion between >the domains. > >In order for either party to be entitled to trademark rights in the domains, >they will likely have to demonstrate that the respective domains are >protectable. Since both domains are used to sell diamonds, arguably the >domains at first blush are descriptive with regard to that portion of the >business. If the domains are descriptive then both parties are going to >have to demonstrate that their use of the respective domain has acquired >distinctiveness. If the domains are in fact generic, then neither party >will likely be able to stop the other party from using their respective >domain. > >Assuming the domains are protectable, then the issues will turn on whether >there is a likelihood of confusion and which party used the domain first. >In this regard, Diamond.com was first registered by Diamond.com, LLC, an >industrial user of diamonds, who sold the domain in 1993 to a domain name >speculator, who ultimately sold the domain in May of this year to the >current owner. On the other hand, Diamonds.com was registered in August of >1994 and was assigned to the current owner in April of 2000. The issue will >likely turn on which party used the wording first and whether their use was >continuous. > >INTA Internet Subcommittee on DNS Governance > > -- [EMAIL PROTECTED] http://ph-1.613.473.1719 This program posts news to thousands of machines throughout the entire civilized world. Your message will cost the net hundreds if not thousands of dollars to send everywhere. Please be sure you know what you are doing. Are you absolutely sure that you want to do this? [ny]
