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[ga] [Fwd: [Ecommerce] Register: US Trademark lawyers"to consume own young New breed raised in intellectual cages and fed raw meat" (it's about ICANN)]
- To: General Assembly of the DNSO <ga@xxxxxxxxxxxxxx>
- Subject: [ga] [Fwd: [Ecommerce] Register: US Trademark lawyers"to consume own young New breed raised in intellectual cages and fed raw meat" (it's about ICANN)]
- From: Jeff Williams <jwkckid1@xxxxxxxxxxxxx>
- Date: Fri, 29 Jun 2007 02:27:59 -0700
- Organization: INEGroup Spokesman
- Sender: owner-ga@xxxxxxxxxxxxxx
All,
I thought a less biased opinion of a significant group of lawyers,
parish the thought, may give a perspective some of us long time
participants are already aware of.
Regards
--
Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 134k members/stakeholders strong!)
"Obedience of the law is the greatest freedom" -
Abraham Lincoln
"Credit should go with the performance of duty and not with what is
very often the accident of glory" - Theodore Roosevelt
"If the probability be called P; the injury, L; and the burden, B;
liability depends upon whether B is less than L multiplied by
P: i.e., whether B is less than PL."
United States v. Carroll Towing (159 F.2d 169 [2d Cir. 1947]
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Updated 1/26/04
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[ Picked text/plain from multipart/alternative ]
http://www.theregister.co.uk/2007/06/28/icann_ip_community/
American trademark attorneys to consume own young
New breed raised in intellectual cages and fed raw meat
By Burke Hansen in San Juan ?
Published Thursday 28th June 2007 15:45 GMT
ICANN San Juan 2007 The Tuesday ICANN extravaganza continued with the
ritualized slaughter of individual privacy rights in the holiest of
holies for American trademark attorneys: ICANN's Intellectual
Property Constituency (IPC) triannual meeting, wherein they flog
their misrepresentations of American trademark law on an
unsuspecting, powerless and almost entirely ignorant internet community.
These overpaid mouthpieces for American corporate dominion over the
internet get a new rallying cry with every extension of the internet,
and the current expansion of top level domains (TLDs) is no
exception. The dispute is never about whether the corporations they
represent have some rights in a certain trademark - they always do.
The question is where those rights are to be honored and to what
extent the trademark in which they do have rights becomes subject to
consumer confusion. Whether or not the mark has suffered any actual
diminution of value, and what actual damages are suffered, is an
extension of this seemingly simple concept.
The basic premise of American trademark law is that a violating mark
be confusingly similar to an existing mark, but the analysis runs
deeper than that. The resolution of whether or not a potentially
violating mark is "confusing" involves a contextual analysis of both
geography and the nature of the market. The recently resolved dispute
between Apple, Inc. (nee Apple Computer) and Beatles' label Apple
Records is a good example of the market-based analysis - once Apple
started making a lot of money off of music, Apple Records had a
strong enough trademark case to force a settlement.
Simple geography can be problematic as well - a famous brand in
America, such as farm equipment manufacturer Caterpillar, may be
considerably less famous, even unknown, in India, China or
Kazahkstan. For such a brand, they may have no trademark rights
whatsoever in remote locations where the brand is either not famous
or almost unknown. So why should they have rights there over an
unrelated internet brand? Why in the world should the scorched earth
tactics of a particular American lobby in any way impact some small
business in a region where they would otherwise have potentially no
rights whatsoever?
In other words, is .apple at the TLD level really a potentially
analogous situation to the Apple Records situation outlined above?
It's true that there are many legitimate cases of infringement out
there, but extending those rights to TLDs - essentially creating
universal trademark rights where none existed before - is a gross
hand-out to companies not in need of any such sort of corporate welfare.
American corporations have been extremely aggressive in protecting
perceived snubs of their trademarks, but the internet is an
international medium of communication, and it is not at all clear
that many American trademarks have much value beyond American
borders. The main concern of the attorneys, of course, is money: any
proposed system that requires them to do any additional work to
determine who owns a potentially offending website provokes endless
howling and gnashing of teeth. The refrain heard at their meetings is
not the wail of the morally wronged; it's always, why should the
trademark community bear the cost of this?
Never mind that the relative cost to the individual registrant
defending such a suit is typically absurdly higher than the relative
cost would be to a major American corporation.
So how is it that American trademark attorneys wield such power with
the de facto government of the internet, ICANN?
Well, the IPC, which should represent the entire IP community of
providers - and potentially even consumers, though they don't even
merit a mention at the meetings - has been co-opted by a relatively
narrow interest group, namely the one doing everything it can to
extend lucrative American trademark protections around the globe,
whether merited or not.
The privacy battles over personal information in the "whois" database
are legendary and longstanding, but the idea that a common dictionary
term used as a TLD could infringe a trademark took front seat at this
event. I defy anyone to find an internet user so unsophisticated as
to assume that a TLD is the sole domain of one company. The standard
for infringement is "likely to lead to confusion", and it's
ludicrous, for example, to claim that a hypothetical internet user
will assume that .cat refers to the Caterpillar company, when a) the
vast majority of world inhabitants have never heard of the company,
and b) absolutely none of those consumers have experienced a TLD used
in that fashion.
Ultimately, restricting trademarks to a very narrow group of current
rights holders is bad for the entire economy, inasmuch as it
restricts both competition and innovation. It also is, cynically, bad
business for the trademark lobby, because they eventually will have
fewer potential clients and defendants.
It's a lobby that should be very careful what it asks for - it just
might get it.
Burke Hansen, attorney at large, heads a San Francisco law office
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