A new idea that might avoid trademark problems. Please read and comment.

[CoolDot]

Hello,

The premisse:
A trademark is (usually) clearly restricted to a certain market or country. Most domain-infringements violate the American market.

The problem:
A domain is valid worldwide and a trademark-infringing domain therefore also cuts into the market the trademark is valid for. Therefore infringing domain owners loose their domains automatically to the trademark-owners just because they infringe in ONE certain market or country.


My idea, a solution?

There are services out there that very reliably determine through IP-address-analysis,where a certain surfer is coming from. They can even (fairly well) pinpoint the city, so determining the country is no problem for them.

Assume that I have a domain that collides with an AMERICAN trademark.

Assume that I build such a mechanism into my website and immediately (before I show the page) determine where the surfer comes from and then

a) send American surfers directly to the official page of the trademarkholder (so no initial confusion, no infringement...) but

b) everybody from outside the USA gets to see my real page


In essence I "give up" the American market and leave American customers to the trademark-owner, but I make use of the non-american market (and possibly even create my own trademarks in those other markets)?


I know that the idea would work technically. But would it work legally? Would I be able to defend my right to own the domain in an American court then?


The basic principle:

There are many trademarks with the same name that coexist because their markets do not touch each other. So far the internet was one market and so a domain-holder automatically infringed. With my idea the internet is also divided into countries and markets and so in essence a single domain could serve two or even more domain-users, each dominating a certain market.


Please comment on wether or not this is legally a possibility.
Because if so, this could revolutionize the way domain-ownership is seen. In an infringement case in court the domain-owner could be ordered to install such an IP-recognition-method in his website and basically loose one (the american) market, but he would not necessarily loose the domain itself then.


Thank you very much for your comments on this.

Kind regards
CoolDot

p.s. Please feel free to also PM me on this...

 

[CoolDot]

Any trademark-lawyers here who want to give a comment?
I am VERY curious to hear your opinions!

Thanks a lot!

 

[seeker]

If I remember correctly, ebay did something similar to one of its sub sirectories. In fact, you can not even go to the adult section If your IP is from outside of the US!

The French courts ordered that selling nazi stuff was illegal in France and I think ebay blocks now all French IPs from going to that section.

Isnt that similar?
There was a court order (sore of like a violation in TM, as a corolation), and they worked around it.
Sounds possible to me.

 

[CoolDot]

Seeker, that's exactly what I mean. They didn't have the TM-problem, but it was also a legal hurdle. They overcame it the same way. Define your visitors and send them to different places...

What do others think?

 

[Scooter]

Originally posted by CoolDot
send American surfers directly to the official page of the trademarkholder (so no initial confusion, no infringement...)

Could they argue that redirecting traffic to them shows that you are aware of their rights as the TM holder. Complicating your 'oops' defence if they do take action.

Maybe simply displaying an error page would be better.

:goofy:

 

[CoolDot]

Scooter, there is no 'oops' in the defense. I would even acknowledge their rights in the USA-market. I would only dispute that they can take the domain away from me because it is now possible to use the domain outside their trademark-market without infringement on the USA-market.

and a technical detail:
I would give the TM-owner 2 choices,
a) redirect USA-visitors to one of his pages or
b) use a PHP script to "suck" one of his pages into my homepage

Because b) would have the advantage that USA-visitors would see the original domain-name in the address-bar of the browser and not the address of the redirected page. This way the domain-'redirect' would be completely transparent to any USA-visitor.

This way, the TM-owner would actually have 100% control over all content that he presents to American customers. And without loss of control and with full transparency to the visitors there can be no infringement. That's my opinion.

And as I said, no 'ooops'. Fully acknowledging the rights of the TM-owners in the American market, even support them the best I can by using the domain as a mirror of their pages, but also fully insisting on our own rights as OWNERS of the domain for all other markets and thereby refusing to hand it over.

That's the defense. And I would LOVE to hear Mr.BerryHill's or any other TM-lawyer's thoughts on this...

Thank you very much for your thoughts and comments.

 

[JuniperPark]

I think you've made the incorrect assumption that companies who threaten trademark violation are doing so because they have a valid claim to trademark. More often than not, these are just harrassment to get you to do something for them (give/sell cheap the name, sign an unrelated agreement, fear being in the business, bankrupt yourself on defense lawyers, etc).

It's an ugly game, not based on truth, common sense, or justice. You are thinking like an honest, logical person; you're in the wrong ballpark by doing that

 

[CoolDot]

JuniperPark,
thanks for your kind words.

I know that companies will attack domain-holders as long as they think they've got a chance. And there's nothing wrong with that.

What I am trying to propose is an escape-route for threatened domainers. Something they can base a legal defense on. And in order to defend well, they must not infringe on valid TM rights in protected markets.


So, yes, law suits will happen again (after all, laywers have hungry kids to feed too ) )

>bankrupt yourself on defense lawyers
With a few precedence cases under my belly that others have won before and a proven technology in my backback, I'd take on that hike any time ) It's the current situation where you've got almost no chance as a poor domainer that is banruptcy-prone.

But by using this technology and making it the basis of a legal defense (read: no harm done in the American market...) domainers actually have a chance.

And, it would just replicate on the internet, what is common practice in real life already. Namely that a name can be registered many times as long as the markets don't colide (different classes and/or different regions).

It's an ugly game, not based on truth, common sense, or justice. You are thinking like an honest, logical person; you're in the wrong ballpark by doing that

Nah, I'm just a cybersquatter desperate and trapped in a corner ))

Thanks for your comments!

 

[HOWARD]

I believe that your idea has merit. I'm not familiar with the technology, but if it works the way that you say it does, I believe that it is a valid defense to a UDRP or even ACPA U.S. law suit.

 

[CoolDot]

HOWARD, great! Thanks for the heads up. Are you a lawyer or just somebody like me who has a gut feeling (which doesn't always have to be correct ) ) about the law?

Thanks for the comment. Any lawyers who would dare an opinion?

Thank you!

 

[Garry Anderson]

Sorry - it will not work:

Primarily because a) lack of portability of email address - misdirected when person in different country tells you of email adddress and b) same words or initials used by businesses in same country.

 

[jberryhill]

Garry is right on b).

You mention "the trademark-owner".

Who is "the trademark owner" for the following marks:

a) CHAMPION

b) DELTA

c) UNITED


a) Sportswear? Spark Plugs?
b) Faucets? Airline?
c) Moving vans? Airline?

 

[Garry Anderson]

Thank you John

Garry is right on a).

;-)

Portability - it may work within the same country e.g. UK to UK or US to US - but not UK to US or US to UK (or any two mixed countries).

How can you email foreign country when system wants to send to resident country?

For example, how can UK user email to US address when both countries share business with the same name?

Other factors I left out include: cloaked browsers like anominizer.com or users with ISP in different country.

 

[CoolDot]

Thanks for the comments.

email: That is a problem. I agree. Non-elegant solutions are to bounce all emails (basically a domain without email), or to forward all email to the USA-trademark owner.

Anonymous surfing: All visitors that the system cannot recogize would be forwarded to the american side of course...

ISP in different country: We are talking continents here... America versus Europe. I think an American using a European ISP to surfe the net is a rare thing.

But email is a problem. I agree. Any ideas for solutions other than basically forward all email to the USA-TM-holder?

Thanks a lot for all your input!

CoolDot

 

[CoolDot]

I thought a bit more about the email-problem.

In principle we have three kinds of email-accounts:
1) well-known ones (webmaster@... office@ info@ sales@...)
2) user-names (frank@ tombrown@ ...
3) undefined ones = default delivery to domain owner

emails of type 1) I would send to the TM-owner in USA (if he wants)
emails of type 2) are no problem if we don't allow collisions. (Two JohnBrown@ in USA or europe). So a simple distributor-program would send JohnBrown's email to the USA and TinaItalia@... to Europe...

emails of type 3) I would also send to the TM-owner in USA

This way the email-"space" would be nicely split up between users in the USA and user's outside of the US and if there is any doubt, the mail goes to the TM-owner in the us.

Remember, the idea is not necessarily a 50:50 split of all functionalities, but rather not do damage to the USA-trademark holder but be allowed to use the same domain also in europe, africa or elsewhere...

Comments to this idea? Thanks!

 

[Garry Anderson]

It is the false premise and outright lie of corrupt authorities that the DNS is primarily for trademarks.

Paul Mockapetris designed DNS for the function of naming resources. He was asked, what do you wish you had invented? He replied, "A directory system for the Internet that wouldn’t be controlled by the politicians, lawyers and bureaucrats."

Fact: Virtually every word is (or can be) registered as a trademark many times over by different type of business in same or different country.

So clearly - every domain that uses any word can be confused with these trademarks.

Guess why the pathetic cowards in authority are afraid to ask the obvious question: "How can people identify the registered trademark domains from normal domains?"

The reason these low-life scum do not ask this question - is because they know the answer:

A protected .reg TLD could identify them - just like the ® symbol does in the real world.

Same as nobody can get a .gov domain name. When you see it, you know it belongs to US government.

 

[CoolDot]

Hello Gary Anderson,

thank you for your comment. I know you are in favor of the .reg extension and I have also seen that you pressed that issue in another thread.

Just like with history, it is the strong, powerful and in general the winners that write the practice (not the letter!) of the law.

And you can demand a .reg as long as you want and try to free up the .com for other usages, it still is not going to happen.

Just like you will not get the big, famous businesses to move away from 5th Avenue or whatever it is, even if the new location would have better parking. Fact is, there are frameworks of the system that have developed historically, and that that have now perpetuated themselves to the point where it will take an act of God to change them )

In short, it's not going to happen and it doesn't help to complain about it.

What I am proposing though is effectively a duplication of domains. By splitting them into the different markets, I suggest to replicate on the internet what is common practice in real life already, clearly defined markets for names.

While I am positive about the traffic-splitting that I suggest, the objection of email-splitting is still standing and I am not sure that my "defenses" above brought them down.

Here again "attack" and "defense"...

Sorry - it will not work: Primarily because
a) lack of portability of email address - misdirected when person in different country tells you of email adddress and
b) same words or initials used by businesses in same country

a) The domain holder hands out email-accounts. Duplicates are not allowed. If in doubt, or in case of high-profile names (webmaster, CEO, sales,...) then these accounts are reserved for the senior-shareholder (the American TM owner).

b) Not sure what you mean there. I assume jb@... for johnbrown in usa and jb@ for janetbriola in italy... as I said, domain-owner hands out email-accounts. What is taken will not be duplicated.


Comments on the email-issue would be great! Also further objections against my idea and comments about why my idea will not work are highly welcome...

Thanks a lot for your thoughts!

CoolDot

 

[Garry Anderson]

Sorry if I annoy you - just to explain:

The last post was to show you start with that same false premise and lie.

Frameworks of the system have developed just as corrupt authorities wanted them. They use cocacola.com excuse for big business to take jt.com etc. from legal domain holders.

Most important question:

You know every word is registered as a trademark - even common words you learnt with your A B C's: apple, ball and cat.

So - just how do you identify these are registered trademarks on the Internet?

They are identified with ® symbol in the real world - to give warning, to advise the public that mark is legally registered and protected in law.

.reg is not my idea - the authorities always knew about it.

.reg is not trying free up the .com for other usages - it is certificate of authentication and directory for holders of registered trademarks.

There is no restrictions on business at all - no requirement for them to lose current domains.

These words are shared with other businesses in the SAME country e.g. the word 'apple' is registered by tobacco and computer companies in the US.

e.g. apple.com is directed to apple.computer.us.reg - who else could it be?

Your master email-account system will work. Although, why should one of the American trademark owners get control - and which would it be?

However, automatic traffic-splitting will not work.

Does 'apple'.(whatever) go to the tobacco or to the computer company in the US?

So - how do you direct traffic to correct site?

That is what the b) above refers to.

Another problem: If somebody in UK wanted to go to US trademark site - they would enter URL and be sent to UK trademark site.

The only way around your problem would be:

Use the trademark name (.whatever), fact it is registered trademark, the country and of course the type of business.

You would end up with something like

apple.com/reg/us/computer

Cor blimey - now that is a coincidence ;-)

 

[CoolDot]

Garry,

First of all, you do not annoy me. I am thankful that you take the time to think about my questions.

Secondly I do think I believe that I understand what you are trying to say. The problem is, that you are trying to change the world radically to make a better future (and nothing wrong with that!!!!) and I am trying to find a way to live with a corrupted system.

Of course I agree with you that trademark overreach has assumed proportions that do not serve the public interest anymore.

Of course I agree that the right is not with the owners of domains but with the high-payed lawyers on the side of big companies. If Jonny Smallguy is threatened with an 80 million dollar law-suit then of course he will hand over his domain without a big legal fight. Law is a beautiful thing, in principle!, but practice of the law often enough isn't. Way too often the outcome depends on how much money you have, whom you know, psychology (fear, revenge, ...) and a lot of other factors that should not play a role in justice at all. It's a flawed system, but MUCH MUCH better than to live without it.

I agree that domains were never intended to be trademarks. They were human-names for numbers (ip-addresses). Nothing more. And if there wasn't big money to be made on the internet these days then nobody would care if I owned microsoft.com and apple.com or any other domain.

But fact is also that the robber-barons HAVE decided that this is THEIR game and complaining about this fact won't change the rules. The bullies have decided to pick on the small guys and so that's how the world runs. And as the world currently is set up, the rich make the rules on how law is applied.

So I do believe I understand you.


Where I come from...
Domains are property. And if I was fortunate enough to buy or register a domain legally that others want (and they were too sloppy or lazy to get themselves), then that's their loss. The concept of personal property is one of the fundamental protections that the law gives (or shoud give). And the whole discussion wether or not domains are property or not is bullsh... in my eyes. And if I happen to own a domain, that I have acquired through legal means (registry or purchase from somebody who originally registered it, read: not stolen) then the law should protect me. It's a shame that it doesn't, but such is the world.


As OWNER of the domain I SHOULD have certain rights and the law should protect these rights.

But of course clever lawyers found ways around this "problem". They simply declare the owner of the domain "just the registrant" and voila, problem solved. Now they can declare themselves rightful owner of the domain because in essence, the domain WAS ALREADY THEIRS FROM THE BEGINNING, because they own the underlying trademarked words.

It's a clever trick, that unfortunately works. As soon as the domain-registrant is not owner anymore but merely registrant, the law doesn't protect him anymore and he's free game.


That's where I am coming from and I hate the current situation, filled with bullies and lawyers payed by bullies, as much as you do, I just don't see a chance for change coming up soon.


In short:
The principle of the law is good, and holy and pure.
The practice of the law (which involves corrupt creation of laws through lobbying, corrupt interpretation of law through powerful, convincing lawyers and corrupt rulings that follow the right of the strong instead of the spirit of the law) stinks.

And that it is possible to be sued for "damages" that never occured, that just existed and were claimed on paper, makes things just worse.

God knows, I would like to do away with this system! But I am realist enough to know when I have a loosing battle at my hands. So instead, I am trying to find a new leverage against those robber barons. And my idea of redirection may not actually work, but it is one such attempt to fight back.

Because if my system just can take root in ONE of the good, solid parts of the law, a part that is not wrotten and corrupted yet, then the law DOES protect it.


And that is the beauty of the legal systems in our (somewhat) civilized countries of North America and Europe. The law may be corrupted in parts, but as a whole it DOES work to a certain degree. And I'd much rather live under corrupted law in Europe or the United States than under the utterly fake, perverted and often non-existent "law" that until recently was in place in Iraq and is still currently in place in many other countries.

To have law, even corrupted law!, is an achievement of mankind. And it took us long enough to finally get it. And much is yet to be done to give it's protection to everybody on this planet.


It would be great if we could finally grow up and declare domains PROPERTY with all the protection of the law that that brings with it. THAT would be the correct solution.

But until that happens, I will think desperately of ideas that can give extra leverage in a legal battle within THIS practice of law we are living in.

And thus my suggestion of redirecting traffic and email .....

Garry, thank you for your comments. Keep thinking about improving the current situation. If many, if enough people think the right thoughts then eventually things will change. This is, how mankind evolves. It is slow, tedious and littered with setbacks, but in general we have already moved forward compared to the inqusition-laws of the middle ages, the nazi-realm and other horrific things.

It is still dark in the world, but I see the morning dawning...



I'll be gone for a few days, so don't despair if I won't answer promptly )

Happy thanksgiving to all!
CoolDot

 

[Garry Anderson]

CD> I am trying to find a way to live with a corrupted system.

Me too CoolDot

This has to be one of the biggest problems for commerce on the Internet.

You would think that big business would want to clearly identify their registered trademarks - to help prevent 'consumer confusion', 'trademark conflict' and 'passing off' - wouldn't you?

Also - you would think the authorities would sincerely want to solve these problems - wouldn't you?

Please spend just a few minutes thinking about the next sentence.

With all the great minds in the world - why is there not any serious research done on finding a solution?