Fw: AW: [ICANN-EU] AMM's "government statement"

["Andreas Fügner" <Andreas.Fuegner@lizenz.com>]

Below is a copy of my response to an earlier posting from AMM:

AF
>
>Dear Andy:
>
>>>Finally, Andy has very much promoted the idea of a "(trademark-)
law-free"
>>>TLD. If there are any lawyers or other law people on the list interested
>in
>>>discussing that idea and developing it in some more detail, please
contact
>>>me by PM.
>
>>I would appreciate this; one of my main question is, how much a policy
>>is a legal question. ICANN´s missed to mention the public space at all
>>in it´s policies. I guess some problems could already be avoided be
>>naming clearly in what policies trade mark does apply and which are
>>explicitly trade-mark free.
>
>
>To the best of my knowledge there is no TM free zone in real life or
>cyberspace. The reason being, that a trademark owner has to
>protect/defend its right every time. Otherwise it is lost.
>
>Further below please find a short brief on why TM owners have to fight so
>much.
>
>Andreas Fuegner
>
>
>Reasons, why Trademark (TM) holders fight so hard for Domain Names.
>
>TMs are highly valuable properties.
>Here are some estimated values of TMs:
>
>Coca Cola: up to 41.000.000.000 US $
>Marlboro:    up to 21.000.000.000 US $
>Microsoft:   up to 20.000.000.000 US $
>
>Source: ICON study
>
>These are by all means properties, worth protecting.
>
>
>But why TMs at all?
>
>The average human being has a passive knowledge of
>anything between 1.000 and 10.000 words. After the
>deduction of basic words like you, me, when, why,
>or, and, Mom, Dad, etc. there is a limit on how many
>TMs a consumer can know.
>
>Thus, TM owners are competing for space in our
>memory meaning preference on our shopping list.
>
>People today use an ever growing number of media
>to inform themselves. There are more TV and radio
>stations, more newspapers and magazines and new
>media like the internet.
>
>This makes it more expensive for TM owners to reach
>consumers to establish and maintain the memory of
>their TM.
>
>Owners of famous TMs annually spend anything
>between 500.000.000 and 2.000.000.000.000 US $
>in communication to support and increase awareness
>of their TM and sympathy and trust into the products
>and services offered under the TM.
>
>There are companies, that own many valuable TMs.
>Unilever holds some 1.600 trademarks. Philip Morris
>owns amongst others Marlboro, Kraft, Jacobs, Suchard
>and Milka.
>Pharmaceutical companies for safety reasons
>register TMs. Your doctor, your pharmacist and
>you yourself want to distinguish the right medication
>from the wrong. Pharma TMs run into thousands.
>Just check a local pharmacy.
>
>Consumers want trademarks also for maybe less
>important reasons. Consumers buy TM products
>to increase their image. Just look up the amount
>of UDPR cases of Louis Voutton Moet Hennessy,
>owner of TMs like Christian Dior, Yves Saint Laurent,
>Chloe, Loewe, Moet Chandon, Hennessy, Louis Voutton,
>etc.
>
>So there is a need and a wish for TMs on all levels.
>
>
>Why all the hustle all of a sudden?
>
>In the past intellectual properties like TMs and patents were
>difficult to activate on a balance sheet.
>Meanwhile legislation is on its way to establish procedures
>how to activate intellectual property on a balance sheet.
>Estimates about the portion of a company value intellectual
>property might account for run from 56 % to 87 %!
>This hopefully gives an idea of the amount
>of money involved and at risk.
>
>
>Why is this money at risk?
>
>Because TM owners have to protect their TM
>in order to keep it. If a TM owner does not
>object to a violation or watering down he looses
>his TM, his property.
>
>An example.
>
>The German public broadcasting network ARD uses a
>TM that consists of a special graphic design of the alpha
>numeric number "1".
>
>A few years after private television was introduced in Germany,
>a competitor of ARD, named Kabel 1, started to use a similar
>logo consisting of another design of the number 1.
>
>ARD eventually filed a law suit. ARD provided an
>independent representative study, proofing that over 20 %
>of the German population were confusing the two logos.
>The consumers assumed that productions from Kabel 1
>were productions from ARD.
>ARD won its law suit and Kabel 1 had to change
>the logo.
>
>Kabel 1 filed for appeal.
>During the appeal, Kabel 1 could prove, that
>another private TV station, named SAT 1, had started
>to use the number 1 earlier than Kabel 1 did.
>And, ARD had missed to object against SAT 1.
>
>As a result, the first court decision was overruled,
>ARD lost its TM protection. To the best of my knowledge
>the case is not finally decided yet.
>
>The burden on TM owners is fairly big.
>It is their responsibility, to check each and every new
>TM application for similarities or violations. The
>trademark offices are not liable and do not guarantee
>protection.
>
>
>In conclusion
>Consumers benefit from TM in many ways.
>A TM is difficult and expansive to establish and to maintain.
>A TM is a valuable piece of property. It deserves protection,
>sometimes in our own interest
>
>
>
>