Re: INTA Policy

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

Martin B. Schwimmer DID NOT write:

At 10:21 AM 8/21/98 -0400, you wrote:
>> Martin B. Schwimmer wrote: 
>> The assertion by Mikki Barry is patently false. 


A different writer made the "patently false" remark.  Nevertheless, I agree
with that writer that you are standing trademark law and constitutional law
on its head."

Warning - the following comments will be U.S.-centric.

As for the dangerous encroachment" of trademark law into "constitutional
law", U.S. courts have been mediating the sometimes conflicting policy
objectives of trademark law and free speech for sometime (even after the
Interent arrived on the scene) with no threat to the republic.  For the
readers out there, after you have downloaded acrobat and read the DNRC
brief, for those of you who do not want their information distilled for
them by the writers on this list, I recommend that they look to:

 "McCarthy's on Trademarks", Section V. of Chapter 31 entitled "The Free
Speech Defense."  All sections in this chapter are relevant to the some of
the issues discussed on these lists.  Of particular relevance are:

section 31:139  - Commercial speech is within the first amendment, Section
31:142 - Deceptive commercial speech, 

Section 31:144 - Using someone else's trademark to convey a message, 

Section 31:145 - Constitutional Right not to have a tademark used to convey
other people's messages,  

Section 31:148 - Criticism of a company or product, 
and a section which has a lot of relevance to some of these discussions - 

Section 31:153 - Parody is no "defense" to a likelihood of consuon.
 Jews for Jesus cites

McCarthy's is one of the most respected if not the most respected treatise
on U.S. trademark law.  It essentially compiles and reports as to what the
law is and is not an advocacy document (the author brackets his own views
undeer the heading "Author's comments).  It is likely to be available in
any university library. (it is a six binder tome, so forget about getting
it from amazon.com or amazom.com.


I would be interested in hearing from non-US folk on their countries'
respective treatment of some of these issues.


In response to Ms. Barry's assertion yesterday that she would support the
third party use of domain names consisting of the names of well-known
organizations - suchas an anti-gun group using nra.org, and anti-baptist
group using baptist.org as long as such use was not confusing, and in view
of her reminder that not all use of the Internet is through the World Wide
Web, I submit that in fact, the email aspect aggravates the problem.

If someone wrote into gun control discussion groups using the email address
"public-afairs@nra.org" or sent fund-raising requests to baptists under the
email address "contributions@baptist.org", there is virtually nothing they
could do to overcome the initially false impression made.  AND it is the
law in the U.S. that an initial false impression is actionable (see
McCarthy's treatise on "initial interest confusion, chapter 23 Section 6
and the cases cited therein).

I think it is pretty much impossible for someone to use tan email address
consisting of the name of a well-known group whose views it opposes without
it being confusing among a significant part of the public.  But that is a
matter of fact and law for a court.

Perhaps if there is another IFWP meeting, all the INTA members should wear
name tags indicating that they are members of DNRC (but if anyone asked,
they would say they were really from INTA).

 
>> and 
>> distinguishes Interstellar Starship Services v. Epix, Inc., in which 
>> I prevailed in court on behalf of plaintiff domain name holder, 
>> the distinction being made by the Jews for Jesus court is that 
>> in Interstellar 
>> (as in Juno, I might add), the goods/services of the domain name 
>> holder were clearly distinguishable from those of defendant Epix, 
>> whereas Brodsky 
>> sought to use the Jews for Jesus name for exactly the same subject 
>> matter 
>> -- although, of course, vehemently taking the opposite view. Religious 
>> freedom does not suggest that one may steal someone else's trademark in 
>> an attempt (as Brodsky himself asserted) to take that other 
>> persons "customers" away as well.  It is Brodsky who sought to "crush" 
>> the right of Jews for Jesus to express its views. 
>
>The Jews for Jesus case was non commercial.  Commercial use was found by a 
>ridiculous stretch by the lower court, essentially saying that a hyperlink
to 
>a commercial cite makes your use commercial.  I ask you again to read the 
>amicus prior to your incorrect conclusions.
>
>You are forgetting that trademark law is carved out of a right to free
speech, 
>and as such must remain within its boundaries.
>>  
>> I say again, extreme arguments in favor of patently unwinnable cases 
>> do not serve the interests of those who are laboring mightily on 
>> the behalf of domain name holders to have recognized and used 
>> the appropriate, time- 
>> honored trademark principles to decide these cases.  Good cases make 
>> good law, and that is what happened in Interstellar, Juno, and Jews 
>> for Jesus, and it does not matter that in the latter case it was the 
>> owner of the registered trademark who prevailed.  It should have. 
>
>Jews for Jesus, stands for the proposition that non commercial speech can be 
>regulated by trademark law, which is a dangerous encroachment onto 
>constitutional rights.  This is EXACTLY why DNRC and others wish to stop
this 
>chilling of communication in favor of trademark interests.  
>
>It is hardly an extreme argument, unlike your proposition that religious 
>speech be trumped by trademark law.
>
>
>
>