Re: Fw: AW: [ICANN-EU] AMM's "government statement"

[Jefsey Morfin <jefsey@wanadoo.fr>]

Andreas,
nobody is fighting your arguments, they fight the confusion and
absoluteness.

If I only use you own inputs:

- there is competition for the small brain slot available for TMs
   resulting in brain washing the world and imposing us a few
   commercial names (coca-cola, malboro, microsoft, etc...).
   And any escape of this Alcataraz will be dearly fought.  So
   these names become huge assets. The "famous name" US
   theory, concerns that.

-  there are millions of words used as convenient labels it is of
    common interest to register in the general interest, so two
    different pills do not be confused.

I fully accept the second case which is public interest. This is
the reason of TMs and this is OK as long as TMs owners are not
trying to get supremacy over a name while they only paid for the
protection of the label on their product.

But I totaly resent the second one as by nature opposed to internet.

I explain: If I go in a computershop and I ask for a Word Processor
I will most probably be proposed not the best but the most sold one.
If I go on Google.com and enter "word processor" I have 776.000
responses to help me to chose.

As a buyer I refuse people spending my money to make me buy
rather to make better the product I buy from them. Frigidaire or
Michelin are showing that you can have your word taken or not to
spend much in advertizing and be a leader. A TM should not be
fended by lawyers but by quality and consumers.

In fact the "famous names" (a totally absurd US notion) should
*not* be protected since they are already protected by public
awareness.  To the countray they should be submitted to the
anti-trust law as monopolizing all the classes in all the world and
creating a lot of sentimental grief. Would I be a  girl named
Mercedes, I would suffer to be constantly taken for a car :-).


BTW, if you read the WIPO documents most of them are very
sensible and correspond to the protection of product labels only.
The "famous marks" are actually quite embarassing to them.
The world is not a commercial goulag. They represent millions
of TM owners who also are members of that world.

In any case the ICANN has *nothing* to do with this. UDRP is a
wrong and complex attempt only to protect registries. It should only
be enough that WIPO and ICANN sign an agreement endorsed by
the GAC saying that national laws apply provided ICANN, registrars
and registeries are imune from being involved any action.

Jefsey



At 14:41 18/10/00, you wrote:
>Below is a copy of my response to an earlier posting from AMM:
>
>AF
> >
> >Dear Andy:
> >
> >>>Finally, Andy has very much promoted the idea of a "(trademark-)
>law-free"
> >>>TLD. If there are any lawyers or other law people on the list interested
> >in
> >>>discussing that idea and developing it in some more detail, please
>contact
> >>>me by PM.
> >
> >>I would appreciate this; one of my main question is, how much a policy
> >>is a legal question. ICANNīs missed to mention the public space at all
> >>in itīs policies. I guess some problems could already be avoided be
> >>naming clearly in what policies trade mark does apply and which are
> >>explicitly trade-mark free.
> >
> >
> >To the best of my knowledge there is no TM free zone in real life or
> >cyberspace. The reason being, that a trademark owner has to
> >protect/defend its right every time. Otherwise it is lost.
> >
> >Further below please find a short brief on why TM owners have to fight so
> >much.
> >
> >Andreas Fuegner
> >
> >
> >Reasons, why Trademark (TM) holders fight so hard for Domain Names.
> >
> >TMs are highly valuable properties.
> >Here are some estimated values of TMs:
> >
> >Coca Cola: up to 41.000.000.000 US $
> >Marlboro:    up to 21.000.000.000 US $
> >Microsoft:   up to 20.000.000.000 US $
> >
> >Source: ICON study
> >
> >These are by all means properties, worth protecting.
> >
> >
> >But why TMs at all?
> >
> >The average human being has a passive knowledge of
> >anything between 1.000 and 10.000 words. After the
> >deduction of basic words like you, me, when, why,
> >or, and, Mom, Dad, etc. there is a limit on how many
> >TMs a consumer can know.
> >
> >Thus, TM owners are competing for space in our
> >memory meaning preference on our shopping list.
> >
> >People today use an ever growing number of media
> >to inform themselves. There are more TV and radio
> >stations, more newspapers and magazines and new
> >media like the internet.
> >
> >This makes it more expensive for TM owners to reach
> >consumers to establish and maintain the memory of
> >their TM.
> >
> >Owners of famous TMs annually spend anything
> >between 500.000.000 and 2.000.000.000.000 US $
> >in communication to support and increase awareness
> >of their TM and sympathy and trust into the products
> >and services offered under the TM.
> >
> >There are companies, that own many valuable TMs.
> >Unilever holds some 1.600 trademarks. Philip Morris
> >owns amongst others Marlboro, Kraft, Jacobs, Suchard
> >and Milka.
> >Pharmaceutical companies for safety reasons
> >register TMs. Your doctor, your pharmacist and
> >you yourself want to distinguish the right medication
> >from the wrong. Pharma TMs run into thousands.
> >Just check a local pharmacy.
> >
> >Consumers want trademarks also for maybe less
> >important reasons. Consumers buy TM products
> >to increase their image. Just look up the amount
> >of UDPR cases of Louis Voutton Moet Hennessy,
> >owner of TMs like Christian Dior, Yves Saint Laurent,
> >Chloe, Loewe, Moet Chandon, Hennessy, Louis Voutton,
> >etc.
> >
> >So there is a need and a wish for TMs on all levels.
> >
> >
> >Why all the hustle all of a sudden?
> >
> >In the past intellectual properties like TMs and patents were
> >difficult to activate on a balance sheet.
> >Meanwhile legislation is on its way to establish procedures
> >how to activate intellectual property on a balance sheet.
> >Estimates about the portion of a company value intellectual
> >property might account for run from 56 % to 87 %!
> >This hopefully gives an idea of the amount
> >of money involved and at risk.
> >
> >
> >Why is this money at risk?
> >
> >Because TM owners have to protect their TM
> >in order to keep it. If a TM owner does not
> >object to a violation or watering down he looses
> >his TM, his property.
> >
> >An example.
> >
> >The German public broadcasting network ARD uses a
> >TM that consists of a special graphic design of the alpha
> >numeric number "1".
> >
> >A few years after private television was introduced in Germany,
> >a competitor of ARD, named Kabel 1, started to use a similar
> >logo consisting of another design of the number 1.
> >
> >ARD eventually filed a law suit. ARD provided an
> >independent representative study, proofing that over 20 %
> >of the German population were confusing the two logos.
> >The consumers assumed that productions from Kabel 1
> >were productions from ARD.
> >ARD won its law suit and Kabel 1 had to change
> >the logo.
> >
> >Kabel 1 filed for appeal.
> >During the appeal, Kabel 1 could prove, that
> >another private TV station, named SAT 1, had started
> >to use the number 1 earlier than Kabel 1 did.
> >And, ARD had missed to object against SAT 1.
> >
> >As a result, the first court decision was overruled,
> >ARD lost its TM protection. To the best of my knowledge
> >the case is not finally decided yet.
> >
> >The burden on TM owners is fairly big.
> >It is their responsibility, to check each and every new
> >TM application for similarities or violations. The
> >trademark offices are not liable and do not guarantee
> >protection.
> >
> >
> >In conclusion
> >Consumers benefit from TM in many ways.
> >A TM is difficult and expansive to establish and to maintain.
> >A TM is a valuable piece of property. It deserves protection,
> >sometimes in our own interest
> >
> >
> >
> >