Re: [ga] Companion Dispute Proposal to WLS Service

[George Kirikos <gkirikos@yahoo.com>]

Hi John,

--- John Berryhill <john@johnberryhill.com> wrote:
> If WLS is implemented and it becomes the one and only way to secure
> registration of expiring names, it is clear that there will be people
> who
> will hoard WLS slots.  Some of the expiring names will, no doubt,
> correspond
> to trademarks of others, and these trademark owners will be thus
> prevented
> from securing registration of the domain names to which their
> trademark
> entitles them.

Woah.....that last statement is one that I think needs to be clarified
somewhat, "securing registration of the domain names to which their
trademark ENTITLES them". I hope you're not putting forth the position
that having a TM *entitles* someone to a domain. I think all the other
elements of the current UDRP need to be established, ex post (not ex
ante) before turning over a domain to a TM holder.

For instance, many TMs exist on common dictionary words. One example is
"apple", with many different trademarks, including Apple Records and
Apple Computer (who is the current registrant of apple.com). Suppose I
wanted to sell apple seeds over the internet, and hold a WLS slot on
"apple.com". Through some miracle it expires. I would not be in
violation of the UDRP, as the domain would be used in good faith in a
business category (the food product "apples", yum, yum) where one
cannot have a TM for the term "apple").

I hope you're not suggesting that Apple Records or any other trademark
holder would have a higher priority than an apple farmer or a
prospective apple seed seller, using the "entitlement" language. This
would introduce issues of "sunrise" periods for WLS or domains in
general, which I'm against, as it is unbalanced towards legitimate
non-trademark holding registrants.

> In order to deal with the problem of WLS-squatting, a WLS Dispute
> Resolution
> Policy (WLSDRP) will obviously be required as an essential component
> of any
> WLS system.

Would the standard be identical to the UDRP? (i.e. the 3 elements that
need to be proved) If so, I'd not have a problem with this. I just want
to ensure that TM holders can only turf out those who are acting in bad
faith, and not those who have legitimate business plans without a
trademark, or for industries where there's a generic term.

A TM is a valuable thing, but it should not be used to stifle
competition in other countries, or in other industries (i.e. TMs
typically have narrow protection, unless they're truly famous like
Kodak,  Coca Cola, Walmart, etc.). With almost every word in the
English language trademarked in one industry or another, it would be an
impossible standard to suggest that someone creating a new business or
new product needs to make sure there's no pre-existing TM on that term,
in *any* industry in *any* country of the world. 

Just as an idle thought, I'd be curious to know roughly how many TMs
you'd consider to be "truly famous", that would need the "entitlement"
standard (I think it should be a very small number, under 1000
world-wide; even Armani couldn't win against A.R. Mani and neither
could Nissan Motors over Nissan Computer).

Sincerely,

George Kirikos
http://www.kirikos.com/


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