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Username: friedrich
Date/Time: Tue, November 14, 2000 at 7:17 AM GMT
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Subject: Human Bios GmbH Switzerland supports the following exerbts from reviewed texts concerning trademarks

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                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
     
     
     
     

 


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