Re: [ICANN-EU] Re: WIPO

Dear Marc:

How did I sense you could not refuse to comment? :-)))

>Even though Mercedes is a common personal name, I would agree that using
>mercedes is a domain name is asking for trouble, unless you, or your
>daughter, wife, gitlfriend is called Mercedes.

Even then, one has little chance.
A trademark identifies a unique single entity/sender/provider.
Thus, the daughter/wife/girlfriend should complain to her
parents for choosing the name. Didn't they know better? :-)

>If this would mean that I can claim "word", "freedom", [...]
>Generic terms and words cannot be trademarked or
>only in a very limited way.

Hey Marc, you did use to finish reading an email
before answering, didn't you?? Just kidding!

>> If an entity other than the trademark owner uses this
>> trademark within or as a domain, than the entity or
>> person is misleading readers/visitors/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 magazine,
>> watches, clothing etc. under the trademark Mercedes.

>Though I do not really believe this, it would be stupid to start a
>mercedes.net. If one must do it for some reason, one would be well advised
>to put a big disclaimer abot not being Mercedes Benz on the index.html.
>But again, it is a stupid idea.

Believe it or not, but politicians, law makers and courts picture
the consumer as a relatively ignorant, uneducated, inexperienced
person, that needs to be protected. This view is slowly growing
out of fashion, but still dominates "consumer protection law".
Trademarks were initially created to educate the consumer.
And before anyone gets carried away, why do we need the
trademark 100% Cotton? Because in this industrialized world
the average consumer cannot tell, the differences anymore.
So there is a need for labeling/trademarks.

>This is also not where the real problems
>are. This is not what cases like bodacious-tatas.com (see
>bodacious-tatas.ORG) are about. It is when trademark owners start claiming
>a very short string (TATA 4 letters) and forbidding everyone to use it,
>even in a non-confusing way.

Ack. Like always the question is, where to draw the line.

>> Some people argue that domains like mercedessucks.com
>> shouldn't be protected by trademark law.
>> Mostly they refer to the freedom of speech.
>>
>> Devil's advocate argues that they could freely speak/publish
>> under thiscarsucks.com or companies-that-suck.com or alikes.

>Part of the freedom of speech is the freedom to choose your own forum,
>therefore your own domain name. What you are saying is: You are free to
>say it, but I tell you where (not). That is censorship.

Marc, your freedom ends where it limits mine.
And censorship is to prohibit the publication of content, not style!
If one follows your personal definition of censorship, one could see
violence as an acceptable "forum" to express an opinion!
Would you publish a magazine "MercedesSucks"? No.
Because it is bad style, it actually advertises the name you
want to complain about and it violates Mercedes freedom.

>> 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? ;-)

>No, you can make up your own name in a sensible way. If you cannot
>register schuhe.de you might use footwear.de. Or for your
>example: homeshare.de. (There are probably better
>examples.)

Marc, what is your point?
footwear is as much a common word as schuhe.

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

>WIPO is quite clearly, even though a UN agency, in the hands of the IP &
>TM lobby. It protects the interests of the large TM and IP owners. It
>cannot be the only organization involved, unless you think that TM/IP
>owners are some sort of special people that should rule the
>internet. Well, they think they are. Do you too?

My question was open, not leading.
Perhaps we can stop trying to create this Bad Guy image on WIPO.
WIPO protects the little inventor or small start up as much as the big
corporation.

>Of course, ICANN went the easy way, by letting WIPO advice on the UDRP and
>largely manage it now.

I disagree. ICANN setup competing arbitrators.
WIPO is just widely used.

>Still ICANN is responsible and to ICANN we should
>send our protests. They approved WIPO as arbitration center, they should
>monitor ICANN. If WIPO is accountable to anyone, it is to ICANN.

Agreed.

Best regards,

Andreas Fuegner