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

[Jeff Williams <jwkckid1@ix.netcom.com>]

Marc and all,

  What Patrick seems not to understand fully is that the UDRP is
a tool WIPO/ICANN to use to "Steal" Domain Names.  The Barcelona.com
case certainly proven this clearly...

Marc Schneiders wrote:

> 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?
> --
> *-------------------------------------------*
>  Marc Schneiders (the rest is in the header)
> *-------------------------------------------*

Regards,

--
Jeffrey A. Williams
Spokesman INEGroup (Over 112k members strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
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