[ga] Priority in Trademark Registration
Hey Joe, you can't argue with a lawyer like
that. Just tell them that the word "speculation" really means
"property rights" and they shut up and go to sleep. As far as
Michael's main point
> What is it, exactly, about permitting trademark owners
priority to register
>their trademarks as secondary names in new commercial
domains
>that threatens the structure of the Internet or free speech? The answer is as
follows:
(1) It is a well-known legal maxim that
"he who asserts, must prove". Therefore those claiming PRIORITY
must show that their private rights supersede the public rights to domain
names.
(2) There are a multitude of classes of goods and
services recognised in international trade-mark law (see, for example, the 42
categories below in Australia). These classes are not ranked by hierarchy
making it impossible to determine competing claims to the same
trade-mark. (3) With dot coms being used
internationally, there is extreme doubt that trademarks registered in the US
should have priority over those registered in perhaps 200 other
countries.
(4) And even within the US there are
competing claims between Federal and State systems of registration. For example,
which State would take precedence in a dispute between competing registrations
in different States? Or should federal law prevail thus denying States'
rights?
(5) Even within the trademark
system, there is a serious conflict between trademark legislation and common law
rights. This is a matter for the Courts to determine on a case-by-case
basis.
(6) From a practical
viewpoint, the creation of a bureaucracy to allocate domain names on the basis
of competing claims, is fraught with danger. Apart from the cost involved,
it will inevitably lead to claims of bias, unfair process and
delay.
(7) To ensure fair play, an
administrative appeal process will need to be established which in turn is
subject to judicial review and appeal. This is an unnecessary
hindrance.
Of course, all of this makes work for lawyers
giving them a "gravy train" to feed on. They are not stupid,
just greedy.
Patrick Corliss
The following is a listing of the 42 classes of goods and services in Australia. While not a complete list, it gives an indication of what goods and services fall in each class. 1.
Chemicals used in industry, science and photography, as well as in agriculture,
horticulture and forestry; unprocessed artificial resins, unprocessed plastics;
manures; fire extinguishing compositions; tempering and soldering preparations;
chemical substances for preserving foodstuffs; tanning substances; adhesives
used in industry 2. Paints, varnishes, lacquers; preservatives against rust and
against deterioration of wood; colourants; mordants; raw natural resins; metals
in foil and powder form for painters, decorators, printers and
artists 3. Bleaching preparations and other substances for laundry
use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery,
essential oils, cosmetics, hair lotions;
dentifrices 4. Industrial oils and greases; lubricants; dust absorbing,
wetting and binding compositions; fuels (including motor spirit) and
illuminants; candles, wicks 5. Pharmaceutical, veterinary and sanitary preparations;
dietetic substances adapted for medical use, food for babies; plasters,
materials for dressings; material for stopping teeth, dental wax; disinfectants;
preparations for destroying vermin; fungicides,
herbicides 6. Common metals and their alloys; metal building materials;
transportable buildings of metal; materials of metal for railway tracks;
non-electric cables and wires of common metal; ironmongery, small items of metal
hardware; pipes and tubes of metal; safes; goods of common metal not included in
other classes; ores 7. Machines and machine tools; motors and engines (except for
land vehicles); machine coupling and transmission components (except for land
vehicles); agricultural implements other than hand operated; incubators for
eggs 8. Hand tools and implements (hand operated); cutlery; side
arms; razors 9. Scientific, nautical, surveying, electric, photographic,
cinematographic, optical, weighing, measuring, signalling, checking
(supervision), life-saving and teaching apparatus and instruments; apparatus for
recording, transmission or reproduction of sound or images; magnetic data
carriers, recording discs; automatic vending machines and mechanisms for coin
operated apparatus; cash registers, calculating machines, data processing
equipment and computers; fire-extinguishing
apparatus 10. Surgical, medical, dental and veterinary apparatus and
instruments, artificial limbs, eyes and teeth; orthopaedic articles; suture
materials 11. Apparatus for lighting, heating, steam generating,
cooking, refrigerating, drying, ventilating, water supply and sanitary
purposes 12. Vehicles; apparatus for locomotion by land, air or
water 13. Firearms, ammunition and projectiles; explosives;
fireworks 14. Precious metals and their alloys and goods in precious
metals or coated therewith, not included in other classes; jewellery, precious
stones; horological and chronometric instruments 15. Musical instruments 16. Paper, cardboard and goods made from these materials, not
included in other classes; printed matter; bookbinding material; photographs;
stationery; adhesives for stationery or household purposes; artists’
materials; paint brushes; typewriters and office requisites (except furniture);
instructional and teaching material (except apparatus); plastic materials for
packaging (not included in other classes); playing cards; printers’ type;
printing blocks 17. Rubber, gutta-percher, gum, asbestos, mica and goods made
from these materials and not included in other classes; plastics in extruded
form for use in manufacture; packing, stopping and insulating materials;
flexible pipes, not of metal 18. Leather and imitations of leather, and goods made of these
materials and not included in other classes; animal skins, hides; trunks and
travelling bags; umbrellas, parasols and walking sticks; whips, harness and
saddlery 19. Building materials (non-metallic); non-metallic rigid
pipes for building; asphalt, pitch and bitumen; non-metallic transportable
buildings; monuments, not of metal 20. Furniture, mirrors, picture frames; goods (not included in
other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone,
shell, amber, mother-of-pearl, meerschaum and substitutes for all these
materials, or of plastics 21. Household or kitchen utensils and containers (not of
precious metal or coated therewith); combs and sponges; brushes (except paint
brushes); brush-making materials; articles for cleaning purposes; steel wool;
unworked or semi-worked glass (except glass used in buildings); glassware,
porcelain and earthenware not included in other classes 22. Ropes, string, nets, tents, awnings, tarpaulins, sails,
sacks and bags (not included in other classes); padding and stuffing materials
(except of rubber or plastic); raw fibrous textile materials 23. Yarns and threads, for textile use 24. Textiles and textile goods, not included in other classes;
bed and table covers 25. Clothing, footwear, headgear 26. Lace and embroidery, ribbons and braid; buttons, hooks and
eyes, pins and needles; artificial flowers 27. Carpets, rugs, mats and matting, linoleum and other
materials for covering existing floors; wall hangings (non-textile) 28. Games and playthings; gymnastic and sporting articles not
included in other classes; decorations for Christmas trees 29. Meat, fish, poultry and game; meat extracts; preserved,
dried and cooked fruits and vegetables; jellies, jams, fruit sauces; eggs, milk
and milk products; edible oils and fats 30. Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial
coffee; flour and preparations made from cereals, bread, pastry and
confectionery, ices; honey, treacle; yeast, baking powder; salt, mustard;
vinegar, sauces (condiments); spices; ice 31. Agricultural, horticultural and forestry products and
grains not included in other classes; living animals; fresh fruits and
vegetables; seeds, natural plants and flowers; foodstuffs for animals,
malt 32. Beers; mineral and aerated waters and other non-alcoholic
drinks; fruit drinks and fruit juices; syrups and other preparations for making
beverages 33. Alcoholic beverages (except beers) 34. Tobacco; smokers’ articles;
matches Classes of services36. Insurance; financial affairs; monetary affairs; real
estate affairs 37. Building construction; repair; installation
services 38. Telecommunications 39. Transport; packaging and storage of goods; travel
arrangement 40. Treatment of materials 41. Education; providing of training; entertainment, sporting
and cultural activities 42. Providing of food and drink; temporary accommodation;
medical, hygienic and beauty care; veterinary and agricultural services; legal
services; scientific and industrial research; computer programming; services
that cannot be placed in other
classes. |