Re: Keyword: Obsolete

[Mikael Pawlo <mpawlo@algonet.se>]

As beeing directly addressed by Jonathan I guess he excepts me to comment,
which I briefly do below. However, I must point out that the time is 0040
here in Sweden, and I have a seminar early tomorrow (or today to be more
exact), so please forgive any lack of logic in my quick remarks below.

On Tue, 20 Oct 1998, Jonathan Zittrain wrote:
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http://www.wired.com/wired/archive/6.09/netizen.html?pg=5
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> worth trying out.)  I do think that placing a slightly more mnemonic
> alternative to domain names front-and-center in the browser could diminish
> much of the economic value to domain names as marquees, and the reasons to
> fight over them along with it.  All of the problems wouldn't be solved, of
> course, they'd just shift to a new field. 
> Anyway, I'm interested what you and others on the list think.

As you know, I've recently written an article on the subject of the legal
status of the domain name for the Nordic intellectual property law
review*.

In a Swedish and EU legal perspective it's not easy to determine what a
domain name is. Sure, a domain name can be a registered trademark, if the
registered trademark is a "word mark". A domain name can also be a part of
a registered trademark. It can be a part of a company name, it can be
nothing more than a domain name, with no other registrations in connection
with the domain name. In some cases the domain name as such become a
trademark, due to later trademark registration or if the domain name
become a "Polaroid famous mark" (this is the American version of a famous
mark, Polaroid Corp v. Polarad Electronics Corp, 287 F2d 492, 495, 128 
USPQ 411, 413 (CA 2 1961), cert denied 368 US 820, 131 USPQ 499 (1961), in
Sweden one often speaks of "Kodak marks", due to an old case. However this
case is no longer valid, why one in Sweden nowadays only use the term
"famous mark", in coherence with EC law, which speaks of "marques
renommées" (French version), "marks having a reputation" (English version)
and "bekannte Marken" (German version).).

One can easily imagine several points of conflicts between domain name
holders and other brand holders (in Sweden between registered trademarks
and other signs for recognition is very important, this is why I use the
term "brand" here).

These conflicts will not be solved in the new smart browsing system, of
which you brilliantly write, Jonathan. As you perfectly well state, the
conflicts will move from one environment to another. However, I think you
have an interesting remark in saying that the value of domain names will
decrease due to smart browsing. This is probably correct, in my opinion.
However, brand holder jsut will have to shuffle their investments from
domain names to entries in brand catalogues, obtained by Microsoft
Network, Netscape Netcentral, Centraal Real Names, Yahoo or the Berkman
Center (grin). In an Internet infrastructure perspective the issue is a
little more alarming - several private stakeholders (Netscape and
Microsoft in particular) can in practice be - as you write - the new Net
czars. And no government can intervene (without confiscation or severe
trust laws), neither can the private industri in general.

Self-regulation is then dead.

Regards,

Mikael Pawlo
Speaking for himself and no one else

*=Issue 2/98, still to be published due to some editing problems in
general (?)

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