Greetings,
Interesting material, to say the least.The
following is abstracted from something I wrote as a RFP which
was posted for
a time at internet ad hoc committee which is a precursor to this entity, icann. It
is too long perhaps to post here?
Maybe not, now to reconsider that. In any case
email me if you like
and I will fire off either an exact copy of it as composed
or perhaps
an update. dank@hq.lindsayelec.com
title:
Management Issues
Regarding Trademark Specific Domains
draft-iahc-kolis-manage-tm-00.txt
January 1997
Central tenet after about a hundred hours of reading and some consultations
with some lawyer friends...
I want to get the the new matter, but please plow through
what may be some misunderstanding(s). I believe the errors if any do not alter the
general approach I suggest.
1) Trademarks specifically in text and graphical form
are under different administrative umbrella concepts in the USA, Europe and rest-of-world.
Though somewhat similiar in theory, in application they are quite different. The
Madrid agreement is a world template, and the USA is not a signatory. Approaches
elsewhere differ. The source material for the Madrid item can be found at:
http://www.wipo.int
2)
Fundementally, the Madrid signatories have a "pay up and its yours" approach. So
a single registry exists. It is not particularily web friendly. Register, pay, and
you have property rights where the agreement is in force.
3) The US has a patchwork
system which includes some state registries and the design patents at USPTO. Importantly,
no single act such as paying for a service guarentees a trademark is defensible as
property. A court desides that, based on the perception of the public, novelty of
the concept, and registrations. A central concept is "use it or lose it". If people
kno the symbol in the target market, then it should be regarded as in force.
4)
Lets say: rest-of-world as a catch all for non-USA, non Madrid signatories.
5)
What all have in common are the mundane realities to itentify when, what and for
whom these symbols apply. Some registries allow color images, but most use patent
style drawings to callout colors. No low conflict system can resolve the thornyest
issues such as does a local travel company called holiday travel 'get' holiday.com
or does mighty holiday Inn's. However, differentiation is possible, and the graphical
abundance of the web or paper is a clarifier. The NIKE and its symbol on Tiger Woods
hat are not readily confused with the Nike Ajax ground to air missle from Hughes
aerospace. There usage is a hint, and of course there logo's.
6) Fraud on the Web
is a non-trivial issue. Accidental appropriation, is an issue. A graphic logo or
other non-text symbol is a major context hint for a well known entity. The dirty
fight for the domain name of choice should be reduced in meaning to the litigants
when they realize, increasingly the site is reached with a click and is (hopefully
for them) stored as a favorite, link or whatever without actually fussing over the
domain name as text. The connecting link preferably is a graphical object featuring
a logo, net just flat text and certainly almost never the URL itself.
7) I suggest
a third level domain in the DNS be recommended as a repository of graphical trademarked
art. If a registration exists such as a federally issued identifier, or a Madrid
ID, this should accompany the symbol. Nike for example would keep this e-document
at:
http://wipo.nike.com/marks.html
Teledyne would file to:
http://wipo.teledyne.com.makrs/html
8)
The symbol must include its manifestation exactly as it occurs in the registries,
but supplimentarily can be shown with modified art as it may appear, (for instance)
cast into zinc or sewn into a garment.
9) The address of the assignees to whom
one would serve process appears here as well.
10) Only a single WWW page is suggested,
with a single regularized name. Only symbols to which rights are claimed may appear.
Date of first use and geographic notes of application may appear.
11) The page
itself may be subject to copyright.
12) A revision list including all manifestations
of the page in a page component. A wise implementor is cautioned to be prepared to
support the claims, especially regarding first use and continuing use.
Advantages
to such a scheme:
A1) Accidental infringement is minimized in that software spiders
can copy down millions of symbols and arrange them in a near infinite number of way
for purusal. Completely unintentional infrigment, such as Apple computer versus Apple
records may be avoided at trivial cost.
A2) All symbols, (or in fact other ancillary
intellectual property to which claims are made), appear in one place per entity.
A3)
Trivial torts involving the look and field of symbols are easily detected. The company/entities
own graphical artists are cautioned to use these exact digital objects which may
include meta text making specific claims. The argument the symbols are either not
adiquately similiar, or are too similiar can often be reduced to a binary comparision!
A4)
The definitive images may or may not be web based depending of the legal jurisdictions
of the litigants.
A5) At a future time WIPO can attached a suggested style
sheet to there web presence and there registry
A6) Operators of registries can
peruse the page for non-compliant users of marks which have falsified madrid numbers,
or simply forgotten to pay renewal fees! This policing my be automatic.
A7) Software
such as "Virage" can aid artists to avoid conflict.
Another point is third and
lower DNS's place no loading either in real time performance, monetary or administrative
terms on the entitiy. This is already there 'property'
the justification of using
the domain name itself may be documented here. Its just another asset.
Hope this
is interesting to you all
Dan Kolis
dank@hq.lindsayelec.com