<no subject>

[martymel@interport.net]

Joseph 
Friedman wrote:

>It must be recognized that people and organizations have a right to use >a name  even if they do not have a trademark on it.  This right should >not be infringed in favor of holders of trademarks.

Unless use of that name creates a likelihood of confusion or dilution 
with the trademark owner.  Organizations do not have an unlimited right 
to use any name.  I cannot start a new organization today named "The 
American Cancer Society" without violating the American Cancer Society's 
trademark.


 > That is, if a person or
>organization has a right to use any given name, in any jurisdiction, >for
whatever purpose, and they register a domain name with this name, they
>should not be prevented from registering or lose this domain because
>another organization does have a trademark on it.

So I can use americancancersociety.com and I have an unlimited right to 
use that domain name?  That is not a self-evident statement and courts 
would not tend to agree with you.

>Generally anyone can use a name if it is not used in the same industry >as
>an organization that does have a trademark on it.

It is not by industry - it is by likelihood of confusion.  The use of 
NIKE on sunglasses would be barred, whether or not Nike was selling 
sunglasses.  That is because a consumer would expect a connection 
between NIKE brand sunglasses, and Nike, the company.

 > The only time >someone or
>some organization should be prevented from using a domain name is if >they
>blatantly use it for the purpose of infringing a trademark.

Intention is not as aspect of trademark law, the standard is likelihood 
of confusion.  If I unwittingly use a confusingly similar trademark, my 
"uniwittingness" may be a factor in assessing damages, but it is not a 
defense to infringement.  One rationale is that the cost of searching 
the trademark register for prior marks is not particularly high - in the 
U.S. you can obtain a full trademark search for $300, and soon the 
Patent and Trademark Office will allow free searching.

mbs