Re: [[dnsproc-en] Re: [IFWP] Market Structure Failure]

[marion Cavanaugh <patentattorney@netscape.net>]

I am not disagreeing with anything anyone has said;
in fact, I am not even sure I understand everything
everyone has said.  However, I get the impression 
that a point is being overlooked, and as a patent 
attorney who is also involved in TM, I think it is 
important:

If you have a TM, and it does not cause confusion in
the market place, it should be okay (and in every
case I know of is okay).  That is true even if the
TM is IDENTICAL to another TM, but for some reason
does not create a conflict (say, a name in insurance
and a name in import/export which is the same for 
each).

Similarly if a TM and a DN conflict in such a way as
to cause confusion in the marketplace, it should have
the same result as a TM and a TM (or a DN and a DN)
conflict.

Further, if a miniscule commercial interest is in 
conflict with a substantial commercial interest (the
best example is cases in which someone files a TM
or a DN for the express purpose of shaking down an 
established business) it is normally appropriate for
the greater interest to prevail.

I am unclear why DN would be different from TM (I 
understand the technical arguments, but I am addressing
confusion in the marketplace with the potential for 
fraud on the consumer).  I also do not see how mere
technical distinctions have any bearing.  Conflicts 
cause confusion in the marketplace, which then 
causes possible harm to the consumer or an innocent
commercial interest, or it doesn't.  All the purely 
technical arguments and innovative alternatives
don't necessarily affect the underlying question; 
which is, and should be, "does the conflict cause
confusion in the marketplace?" and "where do the best
interests of the most consumers lie?".  The latter
"looks like" the law is caving in to large commercial
interests, but the real concern is the least harm 
to the largest number of consumers.

I suggest this is not likely to change, and all the
innovative solutions one can think of will have very
little effect on the eventual outcome (though the 
O. J. Simpson trial proved that anything CAN happen).

Please DO NOT take this as criticism, and please 
be aware that I both respect and appreciate your
efforts; but please do not delude yourselves on the
ultimate result; which is the greatest benefit for 
the greatest number of people commensurate with the
rights of the individual, where possible.

Regards, and THANK YOU for all the fine work!

Marion E. "Gene" Cavanaugh

P. S.  I still think that the courts would both 
appreciate be guided by a well-thought out approach
that involve substantial consensus, and I am quite
sure that justice would be better served by such a
result.  The courts won't ask you, though, you 
either proactively provide guidance or you will be
ignored (lead or get out of the way!).

owner-dnsproc-en@wipo2.wipo.int wrote:
Stef and all,

Einar Stefferud wrote:

> Hello Gregbo -- You ask...
>
> }I guess I have never really understood the ORSC position on new TLDs,
> }because it doesn't seem to me that it makes the TM problems go away
> }for quite some time, if ever.
>
> Well, it is very simple!  More TLDs make it easier for parties to
> share the use of given SLD names, each under a distinctly different
> TLD, so the faster we add new gTLDS, the faster we will solve the
> conflict problems, and conversely, the slower we go the slower we
> solve the conflict problems.

  FIrst Stef, lets look at what Gregbo said.  It was a statement not a
question
as you characterize it.  Second, you answer or retort has merit but is
gross over simplification and really does not address the central issue
directly,
but rather does address a possible consideration towards a potential
solution depending on whether the TM interests view it.  I would doubt
rather seriously, based on already known rancor of the TM interests of
late, that the TM interests (Read legal community), would view your
proposed solution in a very positive light or even a valid migration
towards
what they would view as a reasonable solution.

>
>
> The wierd part of this whole issue is that the TM forces seem to be
> dead set against the DNS being allowed to have numerous TLD categories
> like the TM "industry" has, which would allow the same SLD name to be
> unabiguously used by different parties with different TLDs, just
> because the same SLD with a differnet TLD is in fact a distinctly and
> distinctively different name.

  We have had the discussion and debate regarding "Categories" of
TLD's.  It is very unlikely and legally arguably a reasonable or acceptable

solution to the TM interests concerns.  However in that there are not
stead fast globally established and enforceable legal standards for TLD's
and Domain Names within a particular TLD name space, this point is
more moot than not.

>
>
> So, the mystery of what is the ORSC "policy postion" is that ORSC
> advocates opening up the root to as many TLDs as the market wants.
> No more, no less!  And sooner rather than later!

  Agreed.  However it must be understood that "Chartered TLD's"
are not the solution as they represent a closed and restrained
reaction, and as such puts in question a potential restraint of
trade condition.

>
>
> Because the lack of gTLD names is THE CORE PROBLEM!

  CORE, is defiantly the at the ROOT (No pun intended) of the
problem here.  I will leave all of you to read between the lines here.

>
>
> Cheers...\Stef
>
> >From your message Tue, 16 Feb 1999 09:59:28 -0800 (PST):
> }
> }Einar Stefferud <Stef@nma.com> wrote:
> }
> }>And, when this reality dawns on [TM interests], they will see that
> }>more TLDs will in fact solve their problems by providing lots of
> }>qualifiers and differentiators.  How many "qualifier" categories does
> }>TM law already recognize?
> }
> }Good question.  When I brought up the subject sometime back, the
> }responses suggested that there were (potentially) hundreds of
> }thousands of qualifiers.  Marks are registered geographically,
> }according to the type of business, etc.
> }
> }>Why should DNS have any fewer the TM?  Why not lots more?
> }
> }We have had this discussion before (and never seem to be able to
> }resolve it).  There are serious concerns as to how well DNS will work
> }with hundreds of thousands of TLDs.
> }
> }Furthermore, are TLDs exclusive in nature?  If so, what happens when a
> }business expands into another area?  Are they forced to move to a more
> }inclusive TLD (assuming one exists)?  Are they forced to register in
> }multiple TLDs?  What happens if their names are in use in the target
> }TLDs?
> }
> }What stops TM interests from taking people in any TLD to court?  It's
> }not as if all the "qualifying mark" TLDs will be created
> }instantaneously.  Until enough TLDs are created to sufficiently
> }qualify a business (assuming that ever happens), there is still a real
> }concern that TM interests will continue to fight for the names they
> }want to protect.
> }
> }I guess I have never really understood the ORSC position on new TLDs,
> }because it doesn't seem to me that it makes the TM problems go away
> }for quite some time, if ever.
> }
> }--gregbo

Regards,

--
Jeffrey A. Williams
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-447-1894
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208



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