> From: lizard [mailto:[EMAIL PROTECTED]]
> So, Ryan, if that is the case, on what grounds can any (sane) person > claim that a site called "kmartsucks.com" is going to 'confuse' > consumers into believing the site is sponsored by KMart? First, there's the value of defending "K-mart" in every conceivable usage, regardless of actual harm. It creates that paper-trail documenting the active defense of the mark. Second, it's a valid way to get something you don't like to go away - sue the other party and make them pay a cost (legal fees, time, etc.) to use your trademark. Third, they may in fact win. A lot of browsers and other internet technologies now implement URL completion routines transparent to the user, and a lot of search engines will return a number of results based on pattern matching. K-Mart will make the argument that when a consumer types in "kmart" in some internet appliance, they may be "accidentally" redirected to "kmartsucks.com", and thus K-Mart's brand will be diluted, to the detriment of the consumer. > Wouldn't making such a claim be perjurious on the face of it? My wife (who is an attorney) tells me that there's almost nothing that can be labelled perjurious in civil litigation except knowingly lying about hard facts. You have every right in the world to claim that my use of your trademark is diluting its value and confusing customers. The court system is set up to determine which of us is right; but it doesn't care if you had reasonable grounds to believe that you'd win if you litigated. In fact, there's a presumption that the law will change over time to reflect changes in society, so just because a case failed in the past doesn't necessarily mean it will fail on the same grounds in the future. > Shouldn't > you be required, by law, to produce an actual consumer who would > testify, under oath, that they were confused by the site? It would be pointless, because it would be so easy to do in virtually every case. I guarantee you that K-Mart could put >someone< on the stand who was confused by kmartsucks.com. Even if you or I thought they were being either idiodic, or purposefully obtuse, or even perjoriously inaccurate about their real experience. [A similar argument was made by Microsoft, who kept asking the government (despite all evidence to the contrary) to produce a consumer harmed by Microsoft's use of its monopoly. The evidence shows that prices of software have been steadily declining, which is the exact opposite behavior expected in a situation where a producer can charge a monopoly rent. In fact, there's a whole school of thought in economics that says that if you don't charge monopoly rents, you don't have a monopoly de facto, even if you do de jure. The government finally made the completely innovative argument that Microsoft's effective ability to squash competition meant that customers were harmed because they didn't have access to technology that >might< have existed if Microsoft hadn't been so ruthless. It was garbage law, and a terrible precedent. But I digress.] > Or is KMart claiming, as a matter of public record, that > their customers > are so mind-bogglingly stupid that they can't tell the difference > between a site which is clearly anti-KMart and one which > promotes KMart? Yes. That's essentially what they're claiming. That's the root of all trademark infringement cases: My customers can't tell the difference between my stuff and your stuff, to their detriment. > Trademark law USED to be about protecting consumers. > Following the 1996 > expansion of the Lanham (Landham?) Act, however, it has become about > protecting corporations from criticism, as trademark lawsuits > have been > used to silence discussion about corporate practices. To be clear: The people who operate kmartsucks.com could probably publish anything they wished in print and distribute it in a tangible form, and there's probably little K-Mart could really do to stop them. They could also put all that content on the web, so long as their DNS entries didn't overlap with the protections extended by Congress into that space. The problem isn't so much the over-extension of trademark protections to corporations as it is a recognition that the DNS system >sucks< at creating a viable marketplace for brands. There's too little context, and too much value at stake for its own good. Ryan _______________________________________________ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
