Re: [ICANN-EU] Re: WIPO

[Marc Schneiders <marc@venster.nl>]

On Sun, 17 Sep 2000, Andreas Fügner wrote:
> How did I sense you could not refuse to comment? :-)))

Because you were playing, at least you said you did, the devil's advocate.
The temptor should be fought.

> >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? :-)

Slowly and secretly you are moving towards trademarks that are more than
they legally are: "unique single entity/sender/provider"? DaimlerBenz?
AFAIK they sell cars. Probably other related products. Didn't they try
something with airplanes? Anyway Mercedes is about cars and
trucks. Period. They cannot claim it as a trademark for everything. They
cannot use it to limit others in their freedom. I cannot call my daughter
Mercedes? I cannot call my dog Mercedes (I hate dogs)? I cannot call my
website Mercedes.org?
I would be stupid if I did. I don't think there should be a TM
problem. There may be a UDRP problem. UDRP is much nicer for the TM
lobby. No court, probably not even in India, would have done what WIPO did
with bodacious-tatas. And a lot cheaper as well. 

> >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!

Sometimes an email calls for buts from the start :-)

[...]
> >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".

And that is very handy for TM lobbyists.

> Trademarks were initially created to educate the consumer.

I think this is not correct. They were perhaps 'sold' as such. 

> 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.

I am not against trademarks or certified labels (two completely different
things, as the second can be used by anyone who passes the standard and
perhaps pays a fee).

> >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.

This is true, but no excuse for lousy arbitration, on the
contrary. Especially when the lines have to become clear in the process,
it has to be monitored more carefully. The UDRP is not monitored at all.
It can go on causing havoc in the hands of so-called arbitration service
providers without being accountable to anyone. That is plainly wrong in
itself and even more so since the service providers do most of the time a
[beep] job.
And also: in case of doubt decide for the respondent, not guilty until
proven otherwise. Now the burden of proof is often put on the accused. If
you have any feeling for justice you know how wrong this is. "Respondent
could not proove a website was up before the complaint." The complainant
should proove there was none!
And you are worried about lines and where to draw them? If not clearly a
cybersquatter, respondent should keep the name. Always. 

> >> 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!

Speaking of lines, where does style  begin and content end? And who
determines that? The censor?

> If one follows your personal definition of censorship, one could see
> violence as an acceptable "forum" to express an opinion! 

I cannot remember ever to have advocated any violence whatsoever. I can,
moreover, not see why you bring this up in this context. What are you
thinking of?

> 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. 

How does it violate Mercedes' freedom? It can counter by publishing
MercedesSucksSucksEvenHarder. Would that then limit my 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. 

Yes, but as it is not German, you might be able to register that and not
Schuhe. Anyway, I think these restrictions are silly and no help really
for the supposedly easy confused customer. Anyone would understand he can
also buy shoes at other places than Schuhe.DE. It is moreover, a problem
that exists only in ccTLDs in certain countries, where they are more
restrictive, also in other matters, sometimes...

 > >> 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. 

I will believe you, when you give me one UDRP case in which a small start
up won a domain from a big company. Just one against the hundreds where it
was the other way around.

> >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.

Why is WIPO widely used? (This *is* a leading question.)

Some other arbitration centers are hardly better by the way.

> >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.

Ah, at last on one point, the final one, agreement.

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 Marc Schneiders (more in the header)
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