[At-Large] [GTLD-WG] IRT working group report

[Karl Auerbach]

Alan Greenberg wrote:

> This may be correct with respect to registrants and privacy. I am not an 
> expert in these matters, but it seems to me that from the point of view 
> of not confronting users with domain names that are easily confusingly 
> similar to others, the needs of real end-users and IP holders may well 
> be quite complementary.

Don't forget that trademarks are a consumer protection device: they are 
created by the law so that consumers can identify products and services 
and distinguish those products from competing products and services.

Thus trade/service marks are generally a good thing - You and I might 
desire that we might want to avoid "GM" automobiles and buy "Honda" 
automobiles; the marks "GM" and "Honda" help us turn our preferences 
into reality.

Trademarks exist to enable the public to use words in a way that 
designates a particular product or service, it does not require that the 
public actually use a given word in the way that the product vendor 
might desire; a trademark does not constrain the public's' use of 
language, it only constrains other vendors from using the trademark on 
their own products.

Trade and service marks do not exist because of some natural law or 
because some God carved them as an 11th Commandment into a stone tablet. 
  No.  Trademarks exist because we, the public, via our legislatures, 
decided that it would be a good thing for the public if vendors could 
mark their goods and services with trustworthy indicators of the source 
of those goods and services.

You and I are perfectly free to go onto a restaurant and order a "coke" 
as a generic word.  In order to prevent the generic-ification of the 
trademark "Coke" waiters are taught to respond "No Coke, Pepsi?"

And I am sure that you, as do I, refer to junk e-mail as "spam", an 
arguably famous (particularly among us Monty Python fans) trademark on a 
"meat" product.

As Humpty Dumpty asked - who is the master, you or the word?

If a large part of the public chooses to use a particular word or phrase 
in a way that identifies a *class* of goods or services rather than a 
particular one then that word or phrase can cease to be a trade or 
service mark.  That happened with "asprin".  And we are all watching the 
noun (and trademark) 'Google' become the generic (and non-trademark) 
verb 'google' as more and more people use that word to refer to any web 
search whether it is done via the Google Corporation or not.

When a word or phrase is being used for a purpose other than to identify 
or distinguish a product then that word or phrase is simply outside of 
the scope in that word or phrase can be trade or service marks.  The 
elected Congressman from a district next to mine is named "Mike Honda" - 
and the Honda automobile company can not evict him from his name because 
his use of his name is outside the context of identifying a product or 
service.

The trademark bar is trying to make us believe that domain names always 
identify a product or service and thus, if the domain name contains a 
word used as a mark, that domain name must necessarily be infringing on 
that mark.  That is, of course, utter rubbish and a stretch of trademark 
rights well beyond the purpose for which they exist.

In Los Angeles every hamburger and hot dog stand says that is famous. 
Apart from Tommies and Pinks I doubt that most of those claims can stand 
scrutiny.  But the egos of owners are always large just as the egos of 
domain name owners are large - in their eyes their name is always "famous".

Those trademarks that globally recognized or famous gain recognition and 
fame not from a claim of famosity but because the public recognizes 
those names and imbues fame.  Yet, like hot dog and hamburger vendors in 
LA, that does not stop trademark owners from claiming famosity.

What the trademark protection bar is trying to do via ICANN is to go 
well beyond that consumer-protection notion and to, instead, create a 
new regime in which words and phrases are effectively ownable in all 
contexts, commercial or not, whether they identify and distinguish a 
given product or not.  And the trademark interests desire to implement 
via ICANN an enforcement system that replaces our existing systems of 
fairness, deliberation, and conformity with the basic purpose of 
trademark law with a system of cheap speed and a prejudice in favor of 
the mark holder.

The intellectual property protection bar is like kudsu - unless it is 
fought and kept within proper bounds it will eventually cover everything.

I oughtta know, I am a member of that bar.

		--karl--