Re: [ICANN-EU] Re: WIPO

[Marc Schneiders <marc@venster.nl>]

On Sun, 17 Sep 2000, Andreas Fügner wrote:
> >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.

How funny, I recently read there were only 42 classes. Well, I assume they
can afford to TM the name so many times and pay the periodical fees that
are no doubt attached to keeping the TM valid. Does one have to pay in
Germany as well if one wants to know if a TM exists? I mean even before
thinking of filing it?
If I read the website correctly one has were I kive. Approx DM 100, for
each name and variant thereof.
Why do I bring this up? To show that only people with sufficient funds can
even check whether their domain *might* be "infringing" upon some TM.

B.t.w. does Daimler Benz has these TMs all over the world in all these
classes?

> >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.

So any comapny that is clever and can afford it just registers names they
want to protect (say Microsoft: "word", "excel", "access") in this class
of yours and all the sites that want to have "access" in their name (and
many have that) are infringing? I doubt this is true. If it is, TM law has
to be reformed. Of course there is no TM law for the whole world... Many
people defending TM like to forget that. And the worldwide character of
names to be claimed through UDRP is not clearly settled. (Of course not.)

So mercedes.org may be illegal in Germany, like wdr.org (another
ridiculous case, though not UDRP). It is not necessarily illegal in all
other parts of the world.

I do not question the fact that Mercedes is a very strong name. And as I
said before, it would be stupid to register it as a domain. It is probably
on "your side" of the line. It is a very well chosen example to plead your
case :-) Now there are others....... madonna, corinthians, clue, crew,
barcelona. 

 > >> 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.

Sure, but "educating" customers I saw recently as a synomym for
"marketing". I was talking about in whose interest TMs are. They are
mainly in the sellers interest. Marks are protected because those who own
them ask higer prices for products than other manufacturers and sellers.
The brand thing.
 > 
> >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.

The difference is that a TM is owned by one company, that can do as it
wishes, while certifications are (more or less, there are good and not so
good probably) open to everyone on an equal basis. If you pass the 100%
cotton test, you can put that on your jeans. You do not have to negotiate
with Levi.

 > > > >[...] 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.

Well you repeat yourself, why can't I? It is a fact that the UDRP has
lowered the threshold to get someone else's domain through a procedure. It
is easier, there is a much better chance to get what you want, it is
cheaper. This is to the benefit of everyone, also small businesses, you
said before. But that is **theory**. We have now seen, how many, 1000, or
more cases, and this is just not happening. Only big companies are going
after small owners. So something is basically wrong in fact. I am not
interested in theory. The facts speak. You have not named one out of all
these over 1000 cases in which a small company ousted a big one, not
one. There is none. Does this not convey some sort of message even to the
most ardent supporters of the TM/IP lobby?
There are some basic flaws in the UDRP. One is that the arbitration center
as well as the panelists are rewarded for deciding in favour of the
complainant, because the next complainant will then pick them. This must
lead to injustice. This does lead to injustice. 
Another is that nobody is monitoring the arbitrators. They can do what
they want. They do what they want. The last one I will mention here, is
that a large number of the arbitrators are part of the TM/IP lobby. This
is particularly true for WIPO. Study the faces on the WIPO webpages and
the accomapnying texts to see my point. 
There is much more of course.

We really need some loud action soon towards ICANN. There have to be
changes in the UDRP before there will be new gTLDs. Imagine all the names
thta will be registered in them in a short period... And all the UDRP
cases... 

> >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.

Not at all. Read corinthians.com: respondent could not proove that there
was a website up before the complaint was filed. The burden of good faith
is often upon the respondent. This is against all legal
principles. Complainants can just claim a lot and the respondent has to
proove it is not true. And within a week, while claimant may take as much
time as he likes before he files. Another thing that has to change for
fairness sake. Idem the period in which one has to file in a court to
repeal the decision under the UDRP. Hardly long enough to prepare and
raise the necessary money. Also for the sake of fairness.

You see, if WIPO would be just a bit smart, it would understand that what
it is doing is not good at all for the interest of TM and IP. If people
begin to realize that the big companies may steal, they will certainly
loose more easily any doubts about copying music, video's etc. If the big
one scan steal, why can't I? Of course a lot of the decision by WIPO
panelists have shown that intellect is not a prerequisite to participate
in that organization.

> >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.

Sure, but if the claimant just says: there was no site up on that domain
before I filed, how should the respondent then proove that? Often this is
impossible. I cannot proove that any of my websites was up an hour ago, or
five minutes ago. Sure I have logs (not true for every website run on
shared servers), but what do they proove? The point is: the complainant
should proove it, he is alleging it. Same with claims that respondent owns
so many domains. How to proove this is not true??
And remember the respondent has just a week to repond. One week, during
which he might have to go to work and take care of his family.

The weaker deserve more protection than the strong. This is a basic
principle of all law (and ethics). The UDRP is not functioning in this
way.
 
> >> 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.

Bad style is no crime. Of course I would mind it. But I would also defend
the other persons right to have that domain and use it for email, web,
whatever she likes. I would probably ignore it.  

Am I famous enough to claim the domain, by the way?

> >> 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:
> 

No, *you* find it. I tell you there is none. If you think otherwise, give
me a case. One. You cannot. If it were only so easy for a respondent to
reply to a UDRP complaint: Go look at the WIPO site. In some of those
cases there is something that supports my case.... Come on. They have a
week to delve through them (and those of the other centers) to find some
points in favour of them. 

> 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.

Because it is so easy and costs only $1,500. Worth a try for that amount,
if your have a couple of hundreds of millions profit. And so easy, cases
are never thrown out. And you cannot be ordered to pay the others sides
legal fees if you loose, like in a court case. All that can happen is that
you will be branded as a reverse domain hijacker. And that happened,
twice.
Which will surely proove to you, that they don't happen.

> 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.

Yes, they are often the enemy. Big money buying lawyers to pervert
justice is always the enemy. Always.

I rest my case. In this forum at least.

--
*-------------------------------------* 
 Marc Schneiders (more in the header)
*-------------------------------------*