[ICANN-EU] Re: WIPO

["Andreas Fügner" <Andreas.Fuegner@lizenz.com>]

Dear Christoph:


I'll play devil's advocate. ;-)
And provide you with some information.

>As long as we don't get the courts recognizing the differences 
>between domains and trademarks, there will be no solution to that.


There is no difference here. Just a conflict!
If somebody uses a famous trademark to register it as
or within (!) a domain, than this person in many jurisdictions 
breaks trademark law. Like using Mercedes in mercedes.org, 
mymercedes.com or mercedesfun.xxx

The conflict arises from the following.

A trademark is registered to clearly and unmistakably 
identify the producer of certain goods or provider of certain
services. A trademark can be registered for one or more 
categories, called classes of products and services.
BTW, that can include services like publishing including 
on the www or services including electronic mail, etc. 

If an entity other than the trademark owner uses this 
trademark within or as a domain, than the entity or
person is misleading readers/visitores/consumers about
the publisher/sender/producer/provider.

For example, the consumer will believe, that the email service
offered under mercedes.net will be provided by the same company,
that is offering cars, financial and repair services, a magazin, 
watches, clothing etc. under the trademark Mercedes. 

Just put yourselve into the shoes of the trademark owner of
Mercedes for a while. Maybe you own some shares? :-)
You invested decades of work and tons of money to
establish the trademark. You took care to built an image and 
a reputation for whatever under this trademark. You made extra
investments to insure quality and consumer satisfaction. 
People now trust in the consistent quality of product offered and 
services randered under your trademark.

Now somebody else takes advantage of your trademark,
your reputation or prestige by publishing something on the 
internet or offering electronic services under your trademark. 
Maybe the person even attempts to damage the image of it.
How would you personally react?

Some people argue that domains like mercedessucks.com 
shouldn't be protected by trademark law. 
Mostly they refer to the freedom of speach.

Devil's advocate argues that they could freely speak/publish
under thiscarsucks.com or companies-that-suck.com or alikes.

Lastly, to make this information more complete, 
most trademark laws prohibit the registration 
of what is defined as a common word like house,
bus, business, etc. 

Court cases are f.e. "mitwohnzentrale.de". 
The court argument is, that you cannot register 
mitwohnzentrale as a trademark for it is a common 
word and it cannot be blocked for others to use.
If that is the case, then you cannot register the domain 
mitwohnzentrale.de. Because through domain registration 
you are blocking other people from using mitwohnzentrale.de.
A suggested solution is to register something like 
mitwohnzentrale-weber-fahr.de or christophs-mitwohnzentrale.de. 
Nice, isn't it? ;-)

>Which gets us to: to start solving a number of the problems
>of DNS we have to get WIPO out of ICANN.


And who should consult ICANN on trademark laws,
if not WIPO?

>Sorry. WIPO is as big as earth is. WIPO influence is worldwide.


Not really. WIPO is trying to be. 
A lot of countries did not sign international treaties 
on intellectual property. Ever wonder where those cheap
Lacoste or Polo shirts come from? Or those inexpensive 
CDs, cameras, VCRs, TVs,? Or the cheap software? 
Say hello to China, Korea, Argentina and all the other 
countries, where copyright and patents aren't honered. 
Or take Syria, that does not accept anything registered 
in Israel, and vice versa.

A nice weekend to everybody,

Andreas Fuegner