RE: [wg-review] Trademarks

["Dassa" <dassa@dhs.org>]

|>-----Original Message-----
|>From: On Behalf Of Karl Auerbach
|>Sent: Friday, February 23, 2001 8:42 AM
|>Subject: Re: [wg-review] Trademarks
|>
|>
|>
|>> Surely the key to the trademarks/domains issue is that of net user confidence.
|>
|>I would disagree.
|>
|>The purpose is not "confidence" but whether a mark identifies and
|>distinguishes a particular good or service from other offerings.

True and the current system appears to be extending trademarks to include rights over domain names.

|>It matters naught whether that identification is associated with a
|>positive or negative message about the good or service.  I can say
|>"Firestone-tires-go-boom.com" and be using the mark in a totally
|>permissable nominative manner to convey a negative message.
|>
|>I would submit further that it is for national legislatures, 
|>not for ICANN or its sub-body, the DNSO, to decide to what extent those who 
|>have marks are able to constrain the activities of those who might diminish the
|>strength of a mark to identify and distinguish.

I agree with this however would also like to see national co-operation and the issue resolved on an international basis.

|>> What is important is the intent of the domain name holder.
|>
|>Again I disagree. Criminal laws focus on ill intent. Civil laws are designed to remedy a wrong, to provide compensation.
|>
|>To focus on the intent of the domain name holder is to tacitly admit that
|>the purpose of the rules is punative and not compensatory or remedial.
|>
|>If there is a harm caused to a mark holder, I submit that it is better to
|>compensate the damage than to punish the ill intent of the doer.
|>
|>Indeed, I suggest that the intent of the domain holder is entirely
|>irrelevant, that all rules/laws regarding DNS-domain name interactions
|>ought to be based on objective evaluation of the actual use of the
|>contested name not on the actual or implied mental state of 
|>the accused domain name holder.

I agree, if there is damage caused to a trademark holder, the UDRP does not address that issue.  It does however make a judgement and hand out a penalty in some situations.

Darryl (Dassa) Lynch.

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