Re: [ifwp] Re: INTA Policy

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

In response to Mikki Barry:

Why did Brodsky pick the domain name "jewsforjesus.org?"  How did he think
people would find his page?  What information was on his page?

What is your response to the email aspect of people reserving domain names
of organizations they are not a part of?

>Each portion you cite makes the incorrect assumption that a domain name is a 
>trademark.  A domain name, on its own, is NOT a trademark.  It is the USE of 
>the domain name that creates trademarkable rights.

I did not make any incorrect assumptions.  I am familiar with the U.S. law
that if a domain name is used as a source identifier it will be treated as
a trademakr (see e.g. JURIS, CARDSERVICE, LA OPINION, ALTAVISTA, GATEWAY,
EPIX) and that if it is not used as a source identifier, it will not be
treated as a trademark (LOCHHEED - referring about NSI, not the owner of
the domain name).

I cited the above sections which summarize trademark law so that the
readers can be informed in a general discussion.  If Brodsky used the
domain name as a trademark (i know, you think he didn't) then these are
some of the sections which are pertinent.

I still encourage the folk out there to read these sections for their
general amusement.  Or at least acknoweldgement that there is a
sophisticated body of law which have been dealingwith these issues for
decades.

  In the case of Jews for 
>Jesus, it is akin to a book title, or a locator.  Are you denying that
Brodsky 
>could have used "Jews for Jesus" as a book title? 

nope. see below.

 As the title of an article 
>in a print publication? 

he sure can and should.

 On a picket?

he sure can and he should.

  Could he use the word "Jews" 

I bet he has used that word.

 the 
>word "Jesus"?


well, not in vain, but that's under a different jurisdiction.  

Have any of you guys ever noticed how Jon Postel kind of resembles Santa
Claus a little?

Brodsky can use "Jews for Jesus" as a book title as long as he indicates
that Jews for Jesus did not sponsor or endorse the book.  A trademark can
not bar use of a term as a title if the term is used in a non-confusing
way.  Sometimes the defense is framed as a descriptiveness argument, as in
the UK case where an author was allowed to write a book about a rock band
using the rock band's name (WET WET WET) as the title.

An unlimited number of people can write books entitled "Jews for Jesus"
under the same conditions.  And because books with identical titles
co-exist, titles do not function as trademarks and the Lanham Act
specifically bars titles from trademark protection (to be distinguished
from the title of a series of books - so ALFRED HITCHCOCK PRESENTS can be
protectable as a trademark but ALFRED HITCHCOCK would not qualify for such
protection).

Because people encounter multiple books under the same title, they do not
treat them as source identifiers and do not rely upon them as such (or at
least if they do, they are silly and the law would not protect them against
that kind of confusion).  IF they want a book from the Jews for Jesus
organization, they have an understanding that if they do a title search on
a catalog, or ask a book store owner for a book called "Jews For Jesus",
that they cannot rely on the title alone.

But a book title is not like a web site.  (This is where you are going to
parse my posting and say "no it is - i know - that's the fundamental
assumption of your position).  

For one thing, if Brodsky merely wrote a book called Jews For Jesus he
wouldn't be able to send email from brodsky@jewsforjesus.org.

People do not encounter numerous organizations named Jews for Jesus or DNRC
or NRA or MADD, certainly within the same field of activity.  They also do
not encounter numerous organizations utlizing confusingly similar domain
names in the same field - that is where the DNRC is trying to repeal the
Lanham Act).

So if they get email from brodsky@jewsforjesus.org they assume a connection
with that organization (right, you say they know they don't, and that's a
conclusion for the court).

And I repeat my remark that were Brodsky wins on appeal, and everybody's
name is up for grabs, then we will be taught not to trust any email we
receive.

And we won't be able to use the domain name system as a directory (we know,
you oppose that).

Incidentally, is anyone at DNRC involved with the development of directory
systems for the Internet?