Re: [ICANN-EU] first penal court ruling

[Jefsey Morfin <jefsey@wanadoo.fr>]

Marc,
I had a long exchange with Andreas which was fruitfull to me (if not
may be to Andeas, sorry). It shown me that:

At 05:06 20/09/00, you wrote:
>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 right. And the response applies to TM and DN systems.

The issue is in fact quite simple: there are five different labeling 
registration
systems (at least) competing for the same human brain attention:

- birth registration: allocating you a first and family name
- company and association registeries
- copyrights, with rather weak but extended protection
- Trade Marks
- electronic naming

They have, in a way or in another to converge. The weakest system is
TM as:

  - it is not universal as birth registration: every one has a name, a country,
    a birth date, a passport, etc.. and the system is such as there is no
    doublon without conflict.
-  the incorporating system works well with a minimal number of conflicts.
-  it is not obvious and acceptable to everyone as copyrights: everyone
    thinks fair that an author or an artist is ackowledged and somehow
    paid as long as when he is dead his family get somthing and then the
    protected text or art object becomes free to all.
-  there is no growing demand for everyone on earth being entitled to
    his TMs as there is for electronic addresses (telephone, internet, ..)
-  in worldwide relations being nation/state bound appears as totally
    outdated and complex in term of labeling/wording.
-  the granted rights are permanents. Once a word is known from
    everyone it should be free: there are synonyms in a language
    (this is its richess).

TM are therefore globally perceived as complex for-ever priviledges.

The response from the TM induvidual owners is globaly correct: "let
understand and adapt". But as usual there are individual owners
and people making a living of TM protections who try to over protect
their interests, becoming too rigid.

This may harass the internet community. But the internet community
is far larger than the TM ones, and its mechanichal power (through
the number, the univesality, the versatility of its implementation) is
such that TM will not survive a direct confrontation. As we need the
TMs for day to day convenience we should help them surviving.

The TM community should better organize and cooperate with the
internet community to find appropriate solutions. First a word we
should talk the same language and try to build bridges between
the two systems. Building together rather than disputing.

1) today people accept constraints in exchange of advantages.
    Internet which is a new system is built on this. TM have to adapt
    their thinking. They have to accept that they do not get their money
    out a right over a name, but from the service they offer in having
    this name clearly identifying their goods or services to the people
    looking for them (what your marketing guy said).

2) they have to clearly define what they are talking about. DNs
     are already a complex issue, involving a lot of different legal
     aspects and a total lack of legal definition. TM are no better
     when you look into the today environement. This in deep
     analysis will permit:

     -  to better see the points of con/divergences
     -  probably to uncover new areas of common interest or of
        conflicts to come
     -  to avoid conflicts of law with other international area and
        internal to the procedures (VeriSign GRS [NSI] offering an
        UDRP service is absurd since they are directly involved
        in the registration process).

     It will also help better defining the relations with the other
     international registration systems.

3) it is necessary to work on the semantic of the TM. There are
     contradictory UDRP ("boadacious-tatas" was hurting Tata Ltd,
     but "boadacioustatas is not"). An analysis of the URL structure
     and semantic is necessary otherwise there are so many new
     possibilities and work around TM rights that the WIPO will over
     react and fall into absurd and unworkable demands.

4) TM system must be urgently organized to cope with the real
     world. It is not to the DN community to face the problem of
     famous marks or international and class problems. The
     WIPO should first organize a worldwide registry with a free
     program allowing anyone to check a proposed DN against
     existing TM rights (look and feel).

Otherwise common sense will prevail.  People know that
Mercedes is a car when it has 4 weels, a private business
when run by Mrs. Roja Mercedes, a argentinian city when
Villa Mercedes, a Best Western Hotel etc... They will
completely forget about  the TM issue. There are lawyers
good enough with many ways to bury the UDRP in legal
technical issues (remember that an UDRP costs only $500
  for all the htmling, typing, study, etc...: you do not make
a living out of it). Then TM owners will have killed their
golden egg henn. To bad for hem, a little bit confusing
for us, but soon DNs would replace TM.
Jefsey