[ICANN-EU] Re: first penal court ruling

[patrick.mayer@gmx.de]

Hi all,

> On 19 Sep 2000, Lutz Donnerhacke wrote:
> > * Marc Schneiders wrote:
> [...]
> > > The depiction of those who trade in domain names as villains,
> originates
> > > with those large companies that discovered the internet late, and
> now
> > > find that names they want are taken. Bad luck. Let them pay for what
> they
> > > want, like when they want to take over something else: at the market
> > > price, not for the WIPO fee.

The only domains a domain trader usually is able to make profit of and at
the same time the only thing UDRP covers are other people (or companies)
_trademarks_. I dont know of any case where a general term (like business.com)
was subject to UDRP or any other kind of legal action without someone being
able to claim that he had a trademark on it.

Therefore, domain grabbers are willfully breaking the law by reserving or
using domain names that are exactly or closely similar to trademarks. The
law says that trademarks are protected. This is not just national law (in
pretty much states, that is), but also international law guarantees trademark
rights. Domain grabbers followed the illusion that cyberspace is a law-free
sphere, which was a nice idea at a time but is kind of outdated and probably
was always wrong.

I do not deny that there are serious problems in correlating trademarks
with domain names, based on the difference in the systems nicely described by
Lutz and others. There are also all kinds of problems around "reverse domain
name hijacking". But all these are not problems of DNS or the law. They
result partly from the incongruence of the systems and partly from villains on
all sides (companies and lawyers not excluded).

Let's adress these problems and not engage in useless discussion on wether
trademark laws per se are good or bad or wether anyone is a "WIPO lover"
(what a dumb allegation).

> Yes, art, houses, land are all far less important than DNS. So making
> money on those is not as bad as making money on a domain name.

Nicht alles, was hinkt, ist ein Vergleich. It is okay to acquire land
lawfully and sell it at a profit. It is not okay to squat land or kill its
former inhabitants and sell it for a profit. Domain name grabbing (reserving of
trademarked names as a domain) is more like throwing out the owners from
their land first and then offering them to sell it back at a reasonable price
because you were so nice to protect it for a while for them.

> Well, I once tried to convince someone who thought that thinking of a
> good
> name first and making money out of that, was wrong. I did this by
> comparing it to marketing. Neither add anything useful. It is just a
> name
> or a slogan. His reply was: "Marketing people add value, they educate
> the
> user." It made me give up on him.

You should have learned something. Maybe he was right? The term
"Education" is maybe a little highly put for what marketeers do, but a term like
"Nike" is not a simple name, it's an ideology. Building up brand awareness,
keeping it and giving people a whole ideology in 30sec-tv-spots is something
really tricky. You might not like that, but people earn millions on doing things
like that and in our society, that's what we want them to do. So, what's
wrong about his statement (except for the pathos)?

Kind regards,

Patrick Mayer


-- 
Rechtsanwalt Dr. Patrick Mayer   patrick.mayer@gmx.de
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