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RE: [gnso-vi-feb10] VI in practice, Rights Protection Mechanisms, Registry Agreements and Variants of TLDs
- To: Avri Doria <avri@xxxxxxx>, "Gnso-vi-feb10@xxxxxxxxx" <Gnso-vi-feb10@xxxxxxxxx>
- Subject: RE: [gnso-vi-feb10] VI in practice, Rights Protection Mechanisms, Registry Agreements and Variants of TLDs
- From: Milton L Mueller <mueller@xxxxxxx>
- Date: Fri, 2 Apr 2010 06:09:18 -0400
Avri wrote in response to Frederick:
> On the blocking example provided, it is clever, I will admit. But since
> a single registrant could not transfer such a name, the only remedy that
> could be offered would seem to be to take it down and block its further
> usage. It is well know that the UDRP needs fixing, so if this facet
> also needs to be fixed as well, it can be - we have more then a year in
> which to fix any of the inconsistencies that true reform might cause in
> any of the ancillary policies. so while they should be noted, they
> should not be sen as blocking.
I am not so impressed by the example, and don't think it poses any new issues
whatsoever. Indeed, it is a perfect example of why the UDRP would not be
needed, and should not be used, in such a situation. Keep in mind the following
facts:
a) A real TM violation as defined by law depends on "use in commerce," not on
string matching. So the registration of a string that matches a TM in a
single-registrant TLD is not by itself an infringement. It depends on how it is
used. As it is now, I can create a microsoft.dcc.syr.edu domain and I defy
anyone to sue me over it merely because the string matches that of MS. If I am
using it to sell fake MS products, then yes, I am infringing - and there are
numerous effective remedies for that even though the UDRP does not apply
b) UDRP was created because of the tremendous scale of 2nd-level registrations
outstripped the capacity of the legal system. The UDRP was intended to be a
primitive first cut to get rid of the easy cases of cybersquatting. Now, if we
are dealing with the actions of single-registrant TLDs, we do _not_ have a
scale problem. You are going to have several hundred, at most a few thousands
in total. Since the percentage of those stupid enough to put at risk their
prized, expensive proprietary name space in order to infringe major global
trademarks is going to be small, you are talking about the number of infringers
in the less than 10 range.
c) Absence of UDRP does NOT mean absence of trademark protection. There are
national and international laws that apply. The UDRP was created not to replace
TM law, or to create an entirely new overlay of TM law.
--MM
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