The Human Bios Web project
group (WPG) recently formed and
consisting both of swiss lawyers and economists
has reviewed a large
number of texts concerning trademark laws in the Internet.While
it was generally accepted within the WPG that domain names
cannot have any negative
impact on trademarkholders rights, as they
are mere addresses, the members of
the WPG generally agreed on the
fact that the content of websites may have such
a negative impact.
Existing trademarklaw offers a strong legal bases as to sue
violations at the level of website contents and needs no substantial
amendments.
It
cannot be the question to support financial interests of
trademarkowners, but
exclusivly legal ones.
Therefore the WPG opposes the current intentions of introducing
so-
called sunrise periods into the internet. It also opposes the current
practice
of transferring domain names to trademark owners.
Such transfers may happen, if
the domain name owner is not able to
pay for the indemnity resulting from a trademark
infringement and
imposed on him through a court - but not as an matter of principle.
Otherwise
trademark law could easily be abused towards gaining
inadequate property advantages
vs. non-trademark owners.
Generally, any address must be regarded as a medium to
point at some
otherwise undefinable property. The fact that addresses in the
Internet(domain names) are being rented on a yearly bases reinforces
that
property-like character.
These addresses are protected through the guarantee of
property, as
far as they are not insulting.
No doubt, infringements taking
place within or behind this property
can and should be sued through the respective
trademarkholder - but
such infringements may not necessarily lead to any transfer
of the
address/property as such.
After reviewing a large number of texts, the
WPG decided to support
the following extracts from texts by ADVOCACY, a group
of advocates
obviously familiar to ICANN:
1. The sunrise provision allowing
early registration by trademark
holders is not grounded in law. U.S. (and european
(WPG)) trademark law is
a balance of the rights of holders and the rights of
non-infringing
users of the mark.
Furthermore, under U.S. (and european (WPG))
trademark law, the
holder has duty to police its mark.
An early registration
is granting trademark holders rights that are
above and beyond the law. It is
also overly-broad and will impact
entities who aren’t infringing the mark, as
well as giving
preferential treatment to one class of commercial entities over
another. Finally, the sunrise creates a presumption that commercial
use is
the superior use of the Internet.
While Advocacy believes that commercial use
of the Internet is
valuable to the economy, we do not believe that it should
be given
superior rights to individuals and non-commercial interests.
2. The
expansion of the name space will provide alternative names to
businesses and
diminish the value of cybersquatting. With each new
gTLD, the ability for any
cybersquatter to extort payment from a
particular trademark holder diminishes.
Furthermore, as new gTLDs are
introduced to the Internet, consumers will become
aware that a .com
Web site is different than a .biz Web site, lessening confusion.
This
alternative is especially attractive because of the need for new
gTLDs
that currently exists and the opportunities such an expansion
will bring to small
businesses. The total number of gTLDs ultimately
introduced must be high for
this alternative to work effectively. The
introduction could be measured and
at a reasonable pace but must be
continual and limited only by what the market
will bear.
3. An alternative is to create a chartered gTLDs for use by trademark
holders. This gTLD could be called .reg or .tmk. Its charter would
allow
all registered trademarks to register within it. This insures
that trademarks
would have the domain name of their choice, assuming
that another trademark holder
did not register it first.
4. While we believe that commercial use of the Internet
is valuable
to the economy, we do not believe that it should be given superior
rights to individuals and non-commercial interests.
5. We are concerned that
the sunrise period could create legal
liabilities for ICANN. As a non-profit
corporation registered in
California, ICANN is subject to U.S. law, and there
is a question
whether this registration preference violates the First Amendment
of
the U.S. Constitution as a restriction of free speech. In addition,
it
is conceivable that a sunrise period would constitute a restraint
in trade or
an attempt to combine with other persons to monopolize
the name space, which
is a violation of Sections 1 and 2 of the
Sherman Act.
WPG
Human Bios GmbH
Switzerland