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RE: [nc-udrp] UDRP Review Questionnaire
oh. ok. I see the issue.
On Wed, 31 Oct 2001, Chicoine, Caroline G. wrote:
> I used that as an example and probably should have used walmartabc.com (to
> avoid the sucks free speech issue), but the real question I was asking is
> whether Section 4(a)(i) should only look at the physical appearance of the
> marks or whether it also should include a likelihood of confusion analysis
> like the one we use here in the U.S. I have spoken with several panelists
> which take different views on this.
>
>
> -----Original Message-----
> From: Michael Froomkin - U.Miami School of Law
> [mailto:froomkin@law.miami.edu]
> Sent: Tuesday, October 30, 2001 10:33 PM
> To: Chicoine, Caroline G.
> Cc: nc-udrp@dnso.org
> Subject: RE: [nc-udrp] UDRP Review Questionnaire
>
>
> FWIW it was the unanimous opinion of the panel of experts in the WIPO
> proceeding that of course the proposed rules would never cover a 'sucks'
> case since there was no way this could be confused with the mark.
>
> Indeed, I still find it amazing that anyone can say it's *confusingly*
> similar. Thus I fail to see the tension here.
>
> On Tue, 30 Oct 2001, Chicoine, Caroline G. wrote:
>
> > I like the amended language and plan to include it in the final draft, but
> > what I am also trying to get at is whether Section 4(a)(i) is being
> > misapplied. For example, in the walmartsucks.com case, if you just look
> at
> > this domain name in and of itself and compare it the trademark walmart,
> you
> > could say it is confusingly similar. However, if you look beyond the
> domain
> > name and look at the "confusingly similar" factors you might come to a
> > different result. Panelists appear to be interpreting this section both
> > ways and I would like to solicit comments on what people feel is the right
> > or better interpretation.
> >
> > -----Original Message-----
> > From: J. Scott Evans [mailto:jse@adamspat.com]
> > Sent: Tuesday, October 30, 2001 7:22 AM
> > To: Chicoine, Caroline G.; nc-udrp@dnso.org
> > Subject: Re: [nc-udrp] UDRP Review Questionnaire
> > Importance: High
> >
> >
> >
> > Caroline:
> >
> > With regard to the question below, I wonder whether it might be simpler to
> > revise the question into two questions such as the two questions set out
> in
> > red below. My reasoning is two-fold. First, the current question is
> long
> > and laborious. Second, the question is very U.S. centric.
> >
> >
> > 1. (new) Section 4(a)(I) of the UDRP requires a Complainant to show
> > that the domain name is identical or confusingly similar to a trademark or
> > service mark in which the complainant has rights. In determining whether
> a
> > domain name is confusingly similar to Complainant's trademark/service
> mark,
> > should a panelist look beyond their physical representations and consider
> > other factors, such as for example the similarity or dissimilarity between
> > the respective goods/services, the similarity or dissimilarity of
> > established, likely-to-continue trade channels, the conditions under which
> > and buyers to whom sales are made, i.e., "impulse" vs. careful,
> > sophisticated purchasing, the fame of Complainant's mark (sales,
> > advertising, length of use), the number and nature of similar marks in use
> > on similar goods, the nature and extent of any actual confusion; the
> length
> > of time during and conditions under which there has been concurrent use of
> > the domain name and Complainant's trademark/service mark without evidence
> of
> > actual confusion, the variety of goods on which the Complainant's mark is
> or
> > is not used (house mark, "family" mark, product mark), and the market
> > interface between Complainant and the domain name owner? Why or why not?
> >
> >
> >
> > Section 4(a)(I) of the UDRP requires a Complainant to show that the
> > domain name is identical or confusingly similar to a trademark or service
> > mark in which the complainant has rights. Should the UDRP be amended to
> > include a list of factors to assist panelists in determining when a
> > "confusing similarity" exists? Why or why not?
> >
> >
> >
> > If you answered yes to Question No. *, what factors should be included
> > in any such list?
> >
> >
> >
> > As always, thanks for your hard work in this area.
> >
> >
> >
> > J. Scott Evans
> >
> > ----- Original Message -----
> > From: Chicoine, Caroline G. <mailto:CCHICOINE@thompsoncoburn.com>
> > To: 'nc-udrp@dnso.org' <mailto:'nc-udrp@dnso.org'>
> > Sent: Monday, October 29, 2001 6:22 PM
> > Subject: [nc-udrp] UDRP Review Questionnaire
> >
> >
> > > Sorry for the delay, but here is the most current version of the
> > > questionnaire. I have taken the liberty to move some questions around
> but
> > > for the time being have kept the numbering the same so people could
> > > compare it against their earlier notes and versions. (In other words,
> the
> > > numbering currently makes no sense, but just disregard) I have put in
> > > comments to notify you all when I changed any language or added new
> > > questions.
> > >
> > > I also believe that we need to have an introductory paragraph to the
> > > questionnaire a draft of which is provided below.
> > >
> > "Pursuant to the UDRP Review and Evaluation Terms of Reference, version 2
> > (which can be found at
> > http://www.dnso.org/dnso/notes/2001.NC-tor-UDRP-Review-Evaluation.html
> > <http://www.dnso.org/dnso/notes/2001.NC-tor-UDRP-Review-Evaluation.html> )
> > the
> > UDRP Review and Evaluation Task Force hereby submits a questionnaire to
> > solicit public comment through a bottom up, consensus-building DSNO
> process
> > regarding various aspects of the existing UDRP. The Task Force has
> drafted
> > this questionnaire with an eye towards not only identifying potential
> areas
> > of reform, but also generating useful suggestions to the extent that
> > modifications to the UDRP are suggested. Therefore, to the extent that
> your
> > responses are critical to the existing UDRP, we request that your
> responses
> > also include proposed solutions. Each individual should submit only one
> > response to this questionnaire. There is absolutely no advantage in
> > submitting multiple responses since the Task Force will not be collecting
> > any statistics based on the responses it receives. Rather, it is only
> > interested in the merits and the substance of the comments it receives.
> >
> > This questionnaire is initially being submitted in English, but Spanish
> and
> > French versions will be issued shortly.
> >
> > We thank you for your time and consideration in completing this
> > questionnaire.
> >
> > UDRP Review and Evaluation Task Force
> > November 1, 2001"
> >
> > > Given my delay in getting this to you, please let me have your thoughts
> by
> > > 9 am central standard time on Thursday, November 1st. Except with
> respect
> > > to the new or revised stuff, this is not the time to be asking for a
> major
> > > overhaul of the questionnaire. You all have had this month to do that.
> > > Assuming no major changes or objections are raised, I plan to
> incorporate
> > > any final comments and send the questionnaire to the DNSO Secretariat
> for
> > > posting to the ICANN website, the DNSO website, the GA and the
> > > Constituency websites later that day on Thursday, Nov. 1. I will also
> > > send a copy to Erick and Dan for translation into Spanish and French,
> > > respectively. If there is anyone else that could translate the
> > > questionnaire any other languages, it would be greatly appreciated.
> > >
> > > Once the questionnaire is out, we still have work to do. First and
> > > foremost, we need to be reviewing results as they come in. I will check
> > > with the Secretariat how we will receive copies of the response and get
> > > back to you on that. Second, we will need to also review third party
> > > studies, a list of which I will provide to you shortly.
> > >
> > If anyone has any questions, please let me know.
> >
> >
> >
> > > <<UDRP Review Questionnaire.DOC>>
> >
> >
> >
>
>
--
Please visit http://www.icannwatch.org
A. Michael Froomkin | Professor of Law | froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
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