Re: Domain Name Regulation

["Martin B. Schwimmer" <martys@interport.net>]

Prof. Mueller, in consensus building mode, tells us that the fact that
microsoft has not (yet) taken action against the use of micros0ft.com, a
site which has a MICROS0FT on the top of its home page (I used a zero just
then) and promotes its distributed computing project, is a model for
trademark owners (and presumably for all domain name holders).  The fact
that they have not taken action is proof that the activity is de minimis,
and the fact that it is de minimis is a complete refutation of the position
of the "trademark crazies" of whom I am certifiably one.

It is my opinion that Prof. Mueller tends to tell us what he wants the law
to be, not what the law is.  I think that the relevance of this discussion
is that it gives domain name holders the opportunity to ponder what would
be the implication of what would happen if the law was what Prof. Mueller
wanted it to be.  Prof. Mueller, through the use of de-humanizing terms
like "crazies" "crybabies" and "clowns", makes it psychologically easy for
you to take hard-line uncompromising positions where the rights of these
groups are dis-regarded.  If the readers think that others are taking a
similarly un-comprising de-humanizing position towards them and their
rights - write to this list.

As for micros0ft.com, we are talking about a real site and real people so I
want to state at the outset that no one in this discussion has access to
all the material facts relevant to this particular situation, and should
treat this discussion as a hypothetical one based only on publicly
available information.


Professor:

OK, first off you state "Are they exploiting the microsoft name? Of course.
There's never been an argument about this." and your response to the exchange:

mbs:"The owner probably picked the name MICROS0FT to trade under because it
> wants to take advantage of the goodwill in the MICROSOFT name
> (everybody's personal feelings about Microsoft aside).

mm: Of course it did."


Based on your statements - using  someone else's trademark to obtain an
advantage - this is trademark infringement.  Period.  Mr. Williams can
write back and say "no it isn't" and it wouldn't matter.  Micros0ft appears
to have reproduced a confusingly similar version of a trademark without
authorization - you even state that they did so intentionally, which is not
an element of infringement (I abstain from commenting on their motivations
and frame of mind - don't know them and they may well be the greatest bunch
of folk in the world - see the further disclaimer at the bottom of the post).

does micros0ft have a defense of "acquiescence?"  Neither you nor I nor the
owner of the domain name knows that yet.

and if Microsoft chooses not to take action because it doesn't want to draw
undue attention to a type of usage (which is a common position when
dealing, for example, with porn sites) - that certainly is not an argument
that public policy should favor such behavior.

does micros0ft have a defense of a disclaimer?  possibly not. might depend
on the court they were in.  You cannot disclaim infringement. Cases often
hold that disclaimers aggravate infringment. In this case the link to
Microsoft's site implies awareness and endorsement by Microsoft.  You
cannot put COCA-COLA on a bottle of soda, put a disclaimer on the bottom
saying "this is not from Coca-Cola of Atlanta" and win.  That is the law
and it doesn't matter if Mr. Williams writes in and say "no it isn't."

so, speaking hypothetically, the use of micros0ft.com so as to take
advantage of the microsoft mark to promote distributed computing service,
which you are prepared to concede is perhaps "somewhat parasitical" is ok
with you.  By the way, whether they make money or not is relevant to
damages, not to whether the use is infringing or not.  You concede that
they used the name to obtain some benefit - that is a "free ride" and that
is actionable and it doesn't matter if Mr. Williams writes in and says "no
it isn't."  

I understand your defense of this activity to be that the damage to
Microsoft is de minimis.  Maybe Microsoft thinks it is de minimis.  Maybe
what is de minimis to Microsoft is not de minimis to other people.

Is it your position that this kind of thing is de minimis to all domain
name owners or only large domain name holders?  What is the threshold where
it is ok to rip off a company?

If you think it is de minimis for ALL domain name holders to have their
name intentionally used for the kind of activity at micros0ft.com, then I
guess the following is ok: registering and using as trading names
i0design.com, travel*net.com, netp0licy.com, cerebelaw.com,
macr0berts.co.uk, s0ngbird.ocm, spec0.com, d0main-name.org, dallasj0nes.com.

And on dallasj0nes.com they will call themselves DALLAS J0NES but as a
defense they will say that it is pronounced DALLAZ JONZ and put a small
disclaimer and link on their site.

What do you folks think?  Is any small alteration of your company's domain
name plus use of that name on the web site ok with you?  I think Prof.
Mueller thinks it's de minimis on your behalf.


P.S. I want to repeat that I view this as a theoretical discussion of the
micros0ft.com site based on the publicly available facts and statements
made by others. Although this post makes predictions as to outcome of
hypothetical legal causes relating to that site, i acknowledge that these,
like all the other legal speculations in this list, are speculations made
without access to what may be material facts relevant to the matter.
Again, I in no way express an opinion about the individuals involved, who
may very well be loving, caring individuals completely beyond reproach in
any arena of their complicated modern lives.