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This is an interesting thread. And Mike made some interesting points, at least in the first post that started the thread. Obviously Mike spends a lot of time to create such a detailed post, and people should appreciate that. And Mike is willing to speak honestly, which many are not willing to do. It does seem to me, however, that Mike is much better at prepared comments than his later, more spontaneous posts in these threads. Just my opinion.
John Berryhill is a treasure for a public forum like this, and we should be respectful for any time he invests here. A lawyer that is not an enemy of domainers is a good thing. And no matter how much a person might like to pick on lawyers, if someone gets in legal trouble who is the first person they turn to?
I dont know the numbers but it is my sense of the TM issue that there are now more domains, not less, that are possible TM violations. I think fewer companies worry about it now; they just dont think about direct nav that much, they only think about google and their own ranking. I could be wrong but its amazing to me how often I run into domains that are very likely TM violations, and are ppc screens.
The topic of complicity is complicated and I dont think people or companies are inherently evil. There are just a lot of opportunism. And without some crossing the line we would not even know where the line is. I have a hard time knowing exactly what a TM violation is. Take the word Coke. Its a very strong brand. One of the strongest. Would Coke.com, if put to ppc, be a TM violation? Yet there is a a metallurgy about Coke, and many other uses of this word. And yet, no matter how logically one tries to argue it, it seems pretty obvious to me that if a guy puts Coke.com to ppc, he hopes to make money because of that mark. He would lie, in court, but that is what he really wants.
So I have come up with my own definition of what a TM violation is and I am curious if anyone else has cast it in this light. I will use a metaphor from how the law views pornogrpahy. Someone asked a Supreme Court justice if it was even possible to define what Pornography is - and you would need an exact definition if you are going to make laws about it. His response was something like, "I know it when I see it". Thats a great response. Its not literal but its very true.
I think we all know when we see a TM violation; we know it when we see it. Anyone who says otherwise is either lying or in the mood to argue. But does that mean we change things? I dont think so. We might have an intuition but its not exact, and I think things are working reasonably well. Not perfect, but for the most part, reasonably well. Its like in sports; every basketball game you see has some player flopping or trying to draw a foul, baseball players try to trick the ref's, football has holding on probably every play. Dating is probably worse than sports. What about advertising? Every commercial is so idealized. So things are not about absolute truth, they are more about having a system that works 'good enough'.
I will end this post by saying that I do not see things changing much. Things seem steady to me. It just feels that way. Its like the shoplifting in stores - you wont ever get rid of it. You can work to minimize it but generally, it wont destroy the store, and most stores just build it into their cost structure. I am sure that our Overlord Google simply builds in some expected level of PPC fraud into its price model. Its a fact of life. (I would like to knojw what google really thinks the rate of ppc fraud is though). I dont know how much typosquatting hurts brands; but it might be less than you think. Most people hate ppc screens and if they land on one they try some other way to find what they want.
Kevin
