Re: [ICANN-EU] Re: first penal court ruling

[Marc Schneiders <marc@venster.nl>]

On Wed, 20 Sep 2000 patrick.mayer@gmx.de wrote:

> 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.

e.g. corinthians.com, crew.com, bodacious-tatas.com (where the tm 
supposedly infringed upon was tata..., read the "joke" at
www.bodacious-atatas.ORG) 

sure there was someone who claimed a trademark, there always is, and if
there isn't they have applied for it; of course even something that smells
like a tm (see barcelona.com) works alright with WIPO

the problem is that having a tm does not entitle you to the domain; there
may be many companies with the same name under tm law; at least some WIPO
arbitrators do not understand this and find that if you have a tm for e.g.
"Superior Council for the City of Barcelona" that you can claim 
barcelona.com
or, if you have a TM for Tata that you can claim bodacious-tatas.com etc
etc

for the record: bodacious-tatas.com is not worth money as a domain name
 
> 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 sphere, which was a nice idea at a time but is kind of outdated and probably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.

Some people do that, yes. The UDRP was set up to deal with them. For
specific cases only. If you are Mayer AG and I register the name Mayer.com
and then try to sell it to you, and to you only, than I should be brought
before a WIPO panel. Not if I register Textilien.com and you happen to be
(and have tm on) Mayer Textilien. Textilien is generic.

There is nothing wrong with the UDRP (well, not much) as it is written
down on paper. The way it is applied is were problems begin.

> 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).

Exactly. And to protect the UDRP from being regarded as theft, which may
in the end lead to it being done away with, we have to fight for its
proper application. Cybersquatters should be dealt with. But only
cybersquatters, not everyone who owns a domain that a company who can
afford a bunch of lawyers, wants to have.
There has been a concerted effort on the part of certain elements in the
tm lobby to call everyone who has domains for sale a cybersquatter. Of
course they do not have the guts to call Procter & Gamble (now selling a
lot of generic domain names at very high prices) a cybersquatter.

> 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.

Explain why this comparison is correct? Who was thrown out of the domain
name that did not exist before it was first registered? If there ever was
a teraa nullius it is in DNS. Again: you are right about names like
Mayer.com, but not about those like Textilien.com. Which sort have you in
mind? Both?

> > 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)?

There is nothing wrong with marketing. I do not, however, buy the idea
that marketing is adding value, and certainly not education. Neither is
thinking of a good name adding value. In fact it is part of marketing in
many ways (a short and easy to pronounce name is much more easy to
advertize, saving money therefore in campaigns). And if I am smart and
lucky (for in marketing one needs both) I may have thought of some good
name, registered it as a domain and may at some time in the future (after
paying for the domain each year) make some money with it.

What is wrong with that? If it ever happens.

Es ist kein aergerer Neid als Weiberneid und Handelsneid?
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*-------------------------------------------* 
 Marc Schneiders (the rest is in the header)
*-------------------------------------------*