Re: [ICANN-EU] Re: WIPO

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

Dear Marc:

>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.

Sorry, but you are wrong. There are over 50 (!) trademark registrations
with Mercedes. DaimlerChrysler registered and uses it (which btw they
are legally forced to within 3 years after registration) for more then 40
different products and services.

>I cannot call my daughter Mercedes? I cannot call my dog Mercedes (I hate
dogs)?

You sure can.

>I cannot call my website Mercedes.org?


It is registered already, but you could try anyhow. :-)
I guess you would be in a dispute within days.
Because DaimlerChrysler has registered and uses
the trademark Mercedes for services+publishing too.

>> Trademarks were initially created to educate the consumer.

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


Marc, trademarks were and are used to make originals
identifyable to consumers. Like 4711 Eau de Cologne
wanted to be distinguished from other perfum and copies
of Eau de Cologne. Levis from other jeans, etc.

>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).


Not so different. Trademarks are licensed against a fee too.
Coca Cola, Joop!, Ralph Lauren, Calvin Klein, Porsche Design
Pierre Cardin (over 400 times), Mars icecream, etc. are all
licensed for a fee. You only need to pass the owners standards.
Which is not easy in most cases.


>[...] 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.


They can be overruled by any court and thus, are not without control.
If people do not go to court, it is a pity, but not WIPOs or ICANNs
fought.
Please, now do not come with the money complaint again.
Neither ICANN, nor WIPO is responsible for the cost of law suits.
And both are not responsible for a fair distribution (however that
would be) of wealth, money, connections, resources or any other
means of power in the world.

>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.

Pardon me, but under UDRP still the complainant has the burden of proof,
in order to get the arbitration started.

>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!

Marc, here you are picking a detail out of context.
During a process an arbitrator or judge can ask either side
to proof different things to reach a better conclusion.

>> 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?


In this case, the laws against defamation.
And, by the way, common sense. Which you showed too in the past,
if I may say in the kindest possible way.
You personally might not care much about marcschneiderssucks.nl,
but it certainly is an offense, defamation and IMHO bad style.

>> 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.


Marc we had this before. At WIPO site you will find more
than your required 1:

http://arbiter.wipo.int/domains/decisions/index.html

There is a growing number of transfers as more trademark owners
now fight against what is called domain grabbing or cybersquatting.

I do not say WIPO always comes to the right conclusion,
but they are not all bad, or the general bad guy, or
the enemy and alike.

Best regards,

Andreas Fuegner