Re: Criterion for placement on the List

[kerryo@ns.sympatico.ca (Kerry Miller)]

John,
> The reasons for this discrepancy are obvious to anyone with any working
> knowledge of the Internet.  They are twofold:
> 
> 1)  Trademark enforcement against DNS names at levels below those
> assigned by TLD registries, or against directory names used within
> Web sites, is a practical impossibility.  The vast majority of names
> at these levels are assigned for private use by the holders of the
> parent domain name, not by publicly accessible registries. 

Maybe for now. The idea that any part of the internet is not de facto 
publically accessible will not stand in the way of the de jure 
*possibility - and no lawyer ever said anything was impossible.
  "First they came for the 2LD holders..."

> 2)  In part because of point 1, consumers' beliefs about the
> ownership of Web sites and e-mail addresses are typically based on
> the second-level domain names (or third-level for registries that
> do not directly delegate SLDs), not domain names at lower levels or
> directory names.  The likelihood of consumer confusion based on
> these names is consequently too small to concern most trademark
> holders. 
 

Between you and Greg, these consumer beliefs sure are the 
cornerstone of a lot of whats 'impossible' to fix about this barely 5 
yr old Net (thats the consumer belief, isnt it?).  Do you imagine any 
functionary of the *legal system ever catching on that the way out 
is to educate the goldurned consumer? 

I just read Playboy v AsiaFocus (1998)
   http://cyber.law.harvard.edu/property/domain/playboy.html

wherein even 5 letters and a hyphen didnt make the URL 
unconfusing -- after all, they sold keychains too.  What struck me 
was that nowhere  in the decision was the fact mentioned that 
'playboy' and 'playmate' were common, ordinary words before PEI 
trademarked them (thus creating *confusion, I should have thought, 
between plain speech and enterprise -- but maybe thats where the 
prising comes in?) . One would think that after creating Adam and 
Eve, then created he trademarks.

This is surely a precedent that deserves to be renouced or revoked, 
or whatever the term might be, before any Net-wise agency (I 
include ICANN as a courtesy) starts setting up compulsory 
arbitration or reservation of names. 

Otherwise, as Carl pointed out, getting on the List will repeat the 
SO 'representation' farce all over again. But wait, wont that be the 
kind of leverage Greg was just wishing for, to get the Firestones 
into a shared 2LD?  Is anyone here interested in a Potentially 
Famous Mark constituency?


kerry