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

[Carlton Samuels]

Yessir, Karl.    Pithy....and very informative.

Carlton

On Sun, May 31, 2009 at 11:34 PM, Karl Auerbach <karl at cavebear.com> wrote:

> 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--
>
>
>
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