Was my domain taken?

[FineE]

But in the real world, it works like this:
http://www.keytlaw.com/urls/zuccarini.htm

This is an example of a United States case

And why should this dispute be heard in a US court? Let's see the registrant lives in the UK and the company being "typosquatted" has a very active business presence in the UK. It is a common misconception to think that the US Anticybersquatting Consumer Protection Act applies outside the United States. It does not.

This is not to say that it a court in the United Kingdom would be more or less favorable to either party than a court in the United States. I am simply saying the dispute would be heard under the laws of the United Kingdom if it gets to court.

 

[jberryhill]

"I am simply saying the dispute would be heard under the laws of the United Kingdom "

It doesn't have to be.

The domain name is registered with a US registrar. That alone is sufficient to obtain jurisdiction in the State of Washington, where the registrar is located. And the judgment can readily be exported via the relevant international convention.

 

[jberryhill]

I have never advised anybody to take on a corporation without seeing a TM Lawyer

Link provided, and...

I see you have to go back in time when I was but a fledgling novice to make your charges stick

It's easier than going forwards in time, but I wouldn't put it past you. "Never" is a long time.

 

[jberryhill]

"Moronic stupidity in one country does not excuse it in another."

Okay, so the US and UK have the "moronic stupidity" of concurrent registration...

Australia too, Garry:

http://scaletext.law.gov.au/html/pasteact/2/1223/0/PA000310.htm

And Ireland:

http://www.irishstatutebook.ie/ZZA6Y1996S12.html

And New Zealand:

http://www.piperpat.co.nz/tmlaw/s026.html

And India:

http://www.indialawinfo.com/bareacts/TM.html#_Toc499720210

And South Africa:
http://www.legalnet.co.za/cyberlaw/TradeMarksAct.htm
(scroll down to section 14 on concurrent registration)

Now, Garry, let's think about where this "moronic stupidity" came from. What can you tell me about the foundations of the legal systems of the nations of Australia, New Zealand, the US, Ireland, South Africa and India?

ALL of these countries inherited their legal traditions - moronic stupidity if you will - from the UK, and ALL of these countries have provisions for concurrent registration of identical trademarks for the same goods or services, subject to conditions that may be imposed by their respective trademark authorities.

There is virtually NO English-speaking square inch of this planet in which trademark registration systems function the way they need to in order for your silly domain system to work. You've been flogging this pony for the better part of half a decade, and nobody bothers to answer your unending and misinformed questions, because your premise is fundamentally mistaken, not because of some conspiracy of corruption.

"It is another to avoid the *absolute crux* of every countries trademark system"

...except for the ones which use English. You never bothered to look up virtually ANY country's trademark laws. Who is avoiding what?

There are the links. Go read them.

 

[FineE]

"It doesn't have to be.

The domain name is registered with a US registrar. That alone is sufficient to obtain jurisdiction in the State of Washington, where the registrar is located. And the judgment can readily be exported via the relevant international convention"

Possible: yes. Likely: no. Unless the defendant has assets in the state of Washington the judgement has to be exported in order to enforce it, and that can get tricky particluarly if it is a "default judgement". Also it may set a dangerous precedent where a potential cybersquatter will go "jurisdiction shopping" when choosing a registrar. I still say any court action arising out of this case will take place in the UK as opposed to the US.

 

[Garry Anderson]

FACT: "Moronic stupidity in one country does not excuse it in another."

IS IT - OR IS IT NOT - THE ABSOLUTE FUNDAMENTAL PREMISE OF TRADEMARK LAW IN EACH COUNTRY - THAT THE MARK IDENTIFIES THE SOURCE?

TO DO THIS

"a legal presumption of the registrant's ownership of the mark and the registrant's exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration;"

MR BERRYHILL - YOU ARE ON THE STAND IN A COURT OF LAW - UNDER OATH - IS THE ABOVE TRUTH OR LIE?

 

[jberryhill]

"MR BERRYHILL - YOU ARE ON THE STAND IN A COURT OF LAW"

Mr. Anderson, you are a looney.

You make two assertions above, which are slightly different from each other.

As to "does a mark identify the source", the answer is yes.

As to the second assertion, the answer is no, because the second assertion is an oversimplification. It is an appropriate oversimplification for the purpose of a trademark FAQ page, which is where you got it. But you remind me of traffic law cranks who use the state-issued Driver's Manual as an authoritative source of traffic law. No... to do that, you need to examine the relevant statutes and interpretive decisions.

Clearly registration provides a nationwide presumption unless the certificate states otherwise right on its face. Very few do, and it is not worth complicating an introductory FAQ to bring up exceptions.

You confuse distinctiveness and uniqueness. You have based your understanding of trademark law on broad oversimplifications, and it frustrates you that things are more complex than you first believed. Now, I have provided you with a list of fully seven countries which permit concurrent registration. I am not going to do a worldwide survey for you, and I chose countries of the UK Commonwealth tradition, since their statutes are readily findable online in English.

What you refuse to understand are the qualifying conditions that may be put on concurrent registrations, after a review of the facts of the marketplace as it exists for the relevant products. You want the law to have mathematical precision and clarity, because that suits your view of the nature of things. The trouble is that law is a reflection of human nature, and trademark law is a reflection of the way things are in real marketplaces. It is not subject to neat wrinkle-free organizing principles, and the laws of all of these nations reflect the fact that markets are "messy" places, and absolute rules are hard to live with.

What you also don't want to deal with is that distinctiveness depends on context. You can issue a registration for the mark "USC" to both the University of South Carolina and the University of Southern California, because neither of those institutions is going to pack up and move into the same neighborhood. Ditto the restrictions on other concurrent registrations - the registration is effective only to the extent of the noted restrictions, which is what all of those concurrent registrations statutes are driving at. The point is to have a trademark registration system that takes reality into account, and not to warp reality around what you want a trademark registration system to look like.

But to take what amounts to a generally true first-approximation, from a USPTO FAQ page, and to behave as if that is the be-all and end-all of trademark law, is ridiculous.

Do Newton's laws of motion explain all dynamic phenomena? No, they don't. Then why do we waste our time teaching them? Because they are a generally valid first approximation, and applicable to most ordinary situations.

My first physics teacher was a corrupt liar - he taught me Newtonian physics.

 

[Theo]

A very entertaining - and edumacating :-D - thread.

 

[Garry Anderson]

John - you know trademark law better than anybody I know.

I am well aware of your diversions - you make this more complicated than it is.

A mark is SUPPOSED to identify source - when you use the same US mark more than once, it no longer identifies source.

That the US Trademark System is a sham - is not a matter of opinion - it is most assuredly a matter of fact.

This is demonstrable.

I am well aware of the distinction between opinion and fact.

J> Mr. Anderson, you are a looney.

As some great people were considered looney, I will take that as compliment - thank you ;-)

J> You make two assertions above, which are slightly different from each other.

You slightly misrepresent what I said - the second assertion is the only way to achieve the first - n.b. quote: "TO DO THIS".

J> As to "does a mark identify the source", the answer is yes.

YES

Exactly - this is THE ABSOLUTE FUNDAMENTAL PREMISE OF TRADEMARK LAW.

J> As to the second assertion, the answer is no, because the second assertion is an oversimplification.

The "exclusive right to use the mark nationwide" is the only way to achieve THE ABSOLUTE FUNDAMENTAL PREMISE OF TRADEMARK LAW - THAT THE MARK IDENTIFIES THE SOURCE.

You hold two concurrent US Registered Trademark "product X" in your hand - how do you identify source of "product X" to the source of "product X" - from this mark?

In order to identify source from the mark - it has to be unique to that product.

J> It is an appropriate oversimplification .. (traffic law analogy).

NO - it is AN ABSOLUTE FUNDAMENTAL.

Let me give you a traffic law analogy:

It is as if everybody is told in US to drive on one side of the road and then finds another US citizen driving on the wrong side towards them.

There is not even a sign to say change lanes.

Before you give the obvious reply - people in America know that others drive on the "wrong side" - but they come from other countries.

J> Clearly registration provides a nationwide presumption unless the certificate states otherwise right on its face. Very few do, and it is not worth complicating an introductory FAQ to bring up exceptions.

How will people EVEN KNOW when a specific US Registered trademark has more than one source?

Is there anything different to the (r in circle) - an (r in box) perhaps ;-)

J> You confuse distinctiveness and uniqueness.

I laughed and laughed and laughed and laughed.

NO - you are funny - it is the US authorities that confuse distinctiveness and uniqueness.

The "exclusive right to use the mark nationwide on or in connection with the goods and/or services" is uniqueness - truth or lie?

To identify the source from US mark alone - it has to be unique - they need "exclusive right to use the mark nationwide".

J> You have based your understanding of trademark law on broad oversimplifications, and it frustrates you that things are more complex than you first believed.

NO - you misrepresent - I am very sure you know that I can do difficult and complex.

J> Now, I have provided you with a list of fully seven countries which permit concurrent registration. I am not going to do a worldwide survey for you, and I chose countries of the UK Commonwealth tradition, since their statutes are readily findable online in English.

What is it about - "Moronic stupidity in one country does not excuse it in another" - that you do not understand?

J> What you refuse to understand are the qualifying conditions that may be put on concurrent registrations, after a review of the facts of the marketplace as it exists for the relevant products.

What is it about - Zip Code Lottery and all associated arguments - that you do not understand?

J> You want the law to have mathematical precision and clarity, because that suits your view of the nature of things….

NO - I understand the complexity of things within law e.g. murder, manslaughter, justified homicide etc.

J> What you also don't want to deal with is that distinctiveness depends on context.

I certainly dealt with distinctiveness and how it is not sufficient to identify source of mark.

More importantly, what you cannot deal with - is that in order to identify source from US registered mark - it has to be unique to that product.

How come you do not understand that FUNDAMENTAL FACT?

J> You can issue a registration for the mark "USC" to both the University of South Carolina and the University of Southern California, because neither of those institutions is going to pack up and move into the same neighborhood. Ditto the restrictions on other concurrent registrations - the registration is effective only to the extent of the noted restrictions, which is what all of those concurrent registrations statutes are driving at.

So then, they are not allowed to advertise or distribute outside these areas e.g. resellers, national magazines and newspapers, the Internet?

So then, everybody is told not to pass (either to sell or give as present) those products to people in other States - so as not to infringe another registered trademark or cause consumer confusion?

If these conditions are not true - then there is NO REAL RESTRICTIONS upon them.

There is conflict of these US registered marks.

There is absolutely nothing stopping them using a mark unregistered - is there?

J> The point is to have a trademark registration system that takes reality into account, and not to warp reality around what you want a trademark registration system to look like.

NO - you misrepresent again - as most people, I want a trademark registration system to look like a trademark registration system.

Like everybody - I want a mark identify the source.

J> But to take what amounts to a generally true first-approximation, from a USPTO FAQ page, and to behave as if that is the be-all and end-all of trademark law, is ridiculous.

You go into spin mode again.

Quote: "a legal presumption of the registrant's ownership of the mark and the registrant's exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration;"

This was what intelligent people believe to be wholly true of registered trademarks - to call it an "approximation" is to be somewhat contemptuous of them.

IT IS ALSO the only way only way to identify the source from US mark.

J> Do Newton's laws of motion explain all dynamic phenomena? No, they don't. Then why do we waste our time teaching them? Because they are a generally valid first approximation, and applicable to most ordinary situations.

J> My first physics teacher was a corrupt liar - he taught me Newtonian physics.

My maths teacher was nice person - he taught me to be top of the class ;-)

So - I presume you agree - that UDRP taking a domain from the law abiding legal owner is trademark overreach (e.g. jt.com and nhn.com)?

 

[navpros]

It seems to me that we totally got off topic all around. Someone new to the industry registers a name which I doubt very seriously he intended any harm and asked a simple question. I read the posts in this thread twice, and it seemed to me that a couple of the replies were "direct insults" to the thread starter.

I am sure that each of us did things that might seem "dumb" to others when we first started in this business, but fortunately we could count on the forums to seek advice and guidance...and hopefully learn a thing or two in the process.

Either way, interesting thread regardless. In the end, I hope this was a learning curve for the thread starter.

 

[Garry Anderson]

Hot Dog admitted to being a typosquatter - which is wrong.

Personally, I was polite to him about this and informed him of the fact that every domain anybody buys will likely be similar to a registered trademark.

John, because of this reply (and entirely properly), wanted to open the discussion up more.

Where are the "direct insults" - does anybody call him "typosquatting scumbag"?

Where you are correct though Dandy: we were all ignorant (dumb) - it applies to all new starters - in anything.

If somebody calls me "ignorant" - I say "what do I not know?"

I do not take it as a "direct insult" - merely a statement of fact.

Although, if it is not true - then it is "direct insult" and appropriate riposte made.

In the end, I hope this was a learning curve for all

 

[hotdog_pk]

dont worry, i am classifying this thread as constructive critisizm. we all need this to learn, and i need to learn a lot.

btw: yes i am still paying attention to the thread.

 

[navpros]

 

[jberryhill]

"btw: yes i am still paying attention to the thread."

I'm shocked that anyone is. Rest assured the perennial topic over which Garry declares most of the world's trademark systems to be a "sham" is a relatively minor issue in trademark law affecting a very few trademarks, which is why it is not spelled out in basic introductory comments on the subject. The problem is that this doctrine screws up this pet comprehensive cure-all for domain name conflicts that (a) he has been infatuated with for years and (b) is never going to happen. In my patent practice, I deal with these types all of the time - they have some sort of perpetual motion machine, and the world refuses to recognize their genius. Ultimately they become convinced that "the system" has been arranged as a corrupt conspiracy to prevent them from being acclaimed the savior of the world. Garry fits the profile to a T.

In your instance, I reserve the right to be sarcastic, as often noted in this forum. If one can't handle sarcasm, which I take as my "fee" here, then one is going to have a real rough time dealing with the kind of nasty things that can happen to typosquatters. So, you have your choice - ridicule here, or financial ruin that can follow you for life. Take your pick. Thick skin is a business asset. If you don't have it, grow some. Registering m9crosoft.com as a domain name, in the relative scale of issue complexity, is pretty much a no-brainer as a legal question, and you deserve to know that in no uncertain terms.

To put that politely and diplomatically risks missing the point that registering a domain name like that is so far from defensible that it doesn't get anywhere near passing the laugh test, hence the subtle humor from Easy Rider here earlier to the effect of "enjoy it while you can." I'm willing to bet that the humor there might have been lost on the casual reader.

 

[namedropper]

Personally, I was polite to him about this and informed him of the fact that every domain anybody buys will likely be similar to a registered trademark.

I'm sorry, but your little anti-WIPO crusade makes you give out dangerously bad advice.

Every domain anyone registers is likely to be similar in some way to some trademark somewhere, but that's so missing the point in this case. This particular name is blatant typosquatting on the trademark of a global corporation who can (and should) crush people for these kinds of obvious violations. We aren't talking about a name that could be used to sell some other product, or a generic word, or random characters, this is a direct copy of a major unique trademark other than for one character that is clearly intended to catch people who slip typing the i and get the 9. There is no other use for it. It's a slam-dunk case of cybersquatting that even the most clueless of people should be able to spot.

You coming in and talking about your crusade against trademark laws is like some snake oil salesman going up to a person with an advanced case of cancer and telling him, "Don't worry about it because everybody gets sick sometimes, and doctors are all crooks, so don't worry about getting that looked at, just buy this bottle of wonder-cure-all health-in-a-bottle."

People who listen to you are putting themselves into incredibly high risk legal situations for no good reason, all so you can pump up your ego. You're a disaster waiting to happen. With any luck you'll be the one destroyed by your ego and stupidity and not the newbies who wander in here looking for advice. But then anyone who can't see through your BS and doesn't bother to check up things from a more reputable source probably gets what they deserve.

 

[impactadmin]

Hi,

I have checked the domain whois information and it seems fine. The domain is locked and it is active.

There shouldnt be any issues.

Impactadmin

BEing only new to the industry I have never had a problem with domain isuues, however lately a domain i had was declared 'not active' with a registrar lock, your going to know why when the domain is m9crosoft.com.

i have had no notification and namecheap still lists it under my account??

what has happened, no tm issues are infringed but microsoft are known for their powers.

 

[hotdog_pk]

hi impact, since the start of the thread, for some reason it... well, worked.
it has been a while since i posted the thread however only recently decided to work.
at the time i was only starting to collect my few domains and other forums, that i visited before dnf, made me very paranoid about the issue...

 

[LewR]

This show was worth the price of admission....

 

[Garry Anderson]

"btw: yes i am still paying attention to the thread."

I'm shocked that anyone is. Rest assured the perennial topic over which Garry declares most of the world's trademark systems to be a "sham" is a relatively minor issue in trademark law affecting a very few trademarks, which is why it is not spelled out in basic introductory comments on the subject.

Fact: John has completely failed to show how any person is to EVEN KNOW when a specific US Registered trademark has been used MORE THAN ONCE.

Fact: The principle doctrine of trademark law is to identify the source from the mark.

Fact: Any system that fails primary function, is a sham.

Fact: In order to identify US source from the US mark - it has to be unique to that product.

The problem is that this doctrine screws up this pet comprehensive cure

The principle doctrine of trademark law is correct - it is the way they have messed it up and used to overreach (reasons shown).

-all for domain name conflicts that (a) he has been infatuated with for years and (b) is never going to happen.

They have happened - jt.com and nhn.com for starters.

In my patent practice, I deal with these types all of the time - they have some sort of perpetual motion machine, and the world refuses to recognize their genius. Ultimately they become convinced that "the system" has been arranged as a corrupt conspiracy to prevent them from being acclaimed the savior of the world. Garry fits the profile to a T.

I advise that people use their own intelligence on this - and not blindly follow John's misdirection.

For example, do I make claims that have not been substantiated?

Have I ever claimed to make perpetual motion machine - or be savior of the world?

Have my comments been anything other than objective logical reasoning?

Consider the fact that John has avoided questions that he would find easy to answer - why is that?

Why has John kicked the player and not the ball - diverting attention away from the questions?

Why has he not answered about UDRP taking a domain from the law abiding legal owner is trademark overreach?

Reverse Domain Name Hijacking
Some trademark legal scholars have speculated that this reverse domain hijacking may be met with cancellation of the company's mark under the doctrine of trademark misuse.

Misuse of trademark
However, the US Patent and Trademark Office has never canceled a mark yet based on trademark use. Nonetheless, cancellation of patents and copyrights have occurred based on misuse, and it may be a matter of time before a similar precedent is set in trademark law.

 

[Garry Anderson]

I'm sorry, but your little anti-WIPO crusade makes you give out dangerously bad advice.

It is informed opinion - nothing more - nothing less - true or false?

You misrepresent me:

Have I said "Do not listen to lawyers - listen to me" OR have I said "He is perfectly right that you should get good intelectual property lawyer - of course" AND "I may not be as much help as real lawyers, JB etc. - but I can certainly give my view on it."

Every domain anyone registers is likely to be similar in some way to some trademark somewhere, but that's so missing the point in this case....

I informed him it was wrong to typosquat.

A case has gone through US courts which used exact name to give reasoned criticism - you may have heard the expression free-speech and of something called the First Amendment.