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Is "coke.ch" A Violation of Coca-Cola's (tm)?
"The word 'coke' in French refers to the drug cocaine ... and the words 'du pepsi' and 'du coca' are used for ordering soda such as Coca-Cola over there. So I registered 'coke' thinking that it was OK to use since the work coke doesn't refer to the Coca-Cola company over in Switzerland."
Let's face it folks...the word "coke" is slang. It's been a slang representation for both "Coca-Cola" and "cocaine" for as long as I can remember. Does a corporation have the right to trademark such slang? And if a word is trademarked before its inadvertent use in common language, what then? Must we all prefix a "(tm)" after using the word coke(tm) even if when we use the word coke(tm) we are not referring to what was trademarked, but the slang version?
This is yet another case that might call for third-party resolution. As near as I can tell, this domain was not registered or used in bad faith. Therefore, as I understand it, Coca-Cola shouldn't have any rights to the domain. Or have I missed something?
Thoughts?
If there's no website after two years, it's a little late to be crying about having to give up the domain. Give it up.
Not just that, but when was the last time you saw one of the editors post in the comments? I've seen Katz/Roblimo a few times recently, but it certainly seems to me that all these sort of suggestions to Slashdot go unnoticed by those in charge.
;) Sure each of them probably get 50,000 emails a day, every post now starts off with 100 posts when you reload every 2 seconds, but could it hurt all of them to read up on the high scoring posts like this one, and post a little blurb, explaining why they posted a story, whether they can/cannot fix things (Apache stories color scheme for one), etc? Better connections with your audience can't be bad.
Back in the olden days you could at least get a "no" from CmdrTaco when you suggested something here.
Oh, and yes, this is a place to get good advice on geek matters, what people think of such-and-such topic as it relates to free software, but let's not pretend this is a free lawyer service. I think it was when the judge released the paper on MS being a monopoly where the Slashdot editor went play-by-play with a lawyer on what the judge was saying in plain english. That was very nice, and it would be great to have more like that when issues of patents/copyrights/domain hijacking come up like this.
I was in Germany, Austria, and Switzerland over the summer last year, and attempted to order Coca-Cola by asking for a "Coke", and all I got were blank stares until I said "Coca-Cola" and then they understood that I was just a stupid American.
The moral of this story, in switzerland, no-one refers to Coca-Cola as "Coke", so Coca-Cola should quit whining, especially since it's obviously not a case of domain squatting considering he intends to use it as an anti-drug site.
Trademarks were not designed to scale globally. They are made to work with geographical restrictions, and most importantly, within certain classes of goods and services. In the US, "Coke" is a trademark of the Coca-Cola Company within class 32 (Non-alcoholic maltless beverages...) and a few other classes in which they sell products. If you're not selling something in one of those classes, and you're not doing something that could confuse or dilute their trademark, there's no way you can be violating their trademark.
The important thing about domain names is that there is no way to tell what class of goods/services a site belongs to simply by looking at the name. You can't even tell if they're even selling anything! The only way that a domain name might be a trademark violation is if it's being used in a bad way. It can't be in violation on its own.
Unfortunately, a lot of large corporations don't like it this way, and it's possible we'll see the law changed so that any mention of any trademark anywhere has to be approved by the trademark holder. That's unfortunate for us as individuals (or even small businesses) -- we're literally having our language stolen from us.
--
When you want to extract money from a large corporation by cyber squatting, you're supposed to grab the domain name early, put up a token web site and establish yourself.
Then when they come knocking you have a leg to stand on.
Instead, I suggest you spin-doctor it: "Coca Cola to remove website over drug addictions".. and then go on to say that Coca Cola is *really* going after you because it doesn't want it's name associated with drugs. Bring up the colorful history of how Coca Cola *REALLY DID* have narcotics in it.. maybe a few claims of revisionist history?
I'm not joking here - you need to sensationalize it if you want to stand a chance. Good luck.
I'm not sure if this has any bearing on this case or not, but it's a question that popped into my head.
From a legal standpoint, do we really "own" domains? After all, if you own something, you don't have to continue to pay for it. We pay for domains on a year to year basis, and therefore, I would see our relationship with domains to be more of a lease, with the lease length being how long we've paid for.
Does anyone have any knowledge of how the courts view this? I started to do a little research, but frankly, I have a cisco test tomarrow, and can't get too sidetracked with this..
--knick
Well, coke is obviously a trademark.
Is the domain being used for anything? It appears not to have a website, and whether or not it's being used for e-mail purposes is unknown.
I would say that unless the owner of coke.ch is using it, the Coca-Cola company has a legitimate gripe. The submitter says that he at one point thought about doing a cocaine-support site. That's great, but that's not what's happening. I think the issue would be very different if www.coke.ch was an active site. As it is, it's pretty easy to make a case for "well if he's not using it, and it's our trademark, we should have it"
is to plead your case in front of the slashdot community. Ok, you've done that.
:-)
/. thread...
/.ers to dig further into the registrar databases to see the other domains you have taken, and then we'll decide whether you are a squatter or a noble cause.
The next step is for the slashdot community to check out your claim, flame Jon Katz, moderate down firstposters, discuss trivial unrelated details, and finally come to a rough consensus.
If your claim seems just, we will rally to your defence, spreading the word of Coca-Cola Corporation's big bully tactics, mirroring your site on australian television, and attempting to correct clueless journalists on why you are right and why hacker!=cracker.
If you are nothing more than a domain squatter looking for sympathy, then you are TSOL (except for a handful of hotgritters who will believe anything
-=0=-
Jumping to the tools immediately at hand, we find the following facts to start a proper
DNS shows no current IP address for coke.ch or www.coke.ch, so you have no website up for us to take a look at. Thus all other tools like traceroute and netcraft are useless.
WhoIs produces
Domain name:
coke.ch
Holder of domain name:
Somjad Puangngern
S Spring APT- C 1142
US-62704 Springfield, IL
United States
Technical contact:
Somjad Puangngern
S Spring APT- C 1142
US-62704 Springfield, IL
United States
Date of last registration:
07.05.1999
I'll leave it to other
the AC
Hemos is like...sci-fi fans;he thinks technology is cool, but he hasn't bothered to understand the science it's based on
Apparently Coke didn't read this part of ICANN's Dispute Policy.....
A site about drugs is usually non profit and almost always fair use... It's not your fault that the product was named after its original ingredient (Cocaine)!!!!!!
c. How to Demonstrate Your Rights to and Legitimate Interests in the Domain Name in Responding to a Complaint.
blah blah blah
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Available at: http://www.icann.org/udrp/udrp-policy-24oct99.htm
In the US, it used to be the case that that trademarks applied to a specific type of product so that you could have an ACME brand of soap that didn't infringe on the trademark of ACME brand cars. With the web, this seems to have changed so that if you can pay your lawyers enough, you can own ACME.com and prevent all the other ACME's from even using the word ACME in the name of their websites.
Swiss law might be more forgiving. The ETOY controversy I think was decided in part that ETOY was a Swiss company and the US company ETOYS wasn't able to enforce their US brand their. (Peter E. Wild in Zurich was their legal counsel)
Also, I think Switzerland is one the few countries that upholds Pivo Budvar's right to the Budweiser brand for beer.
Given that your site isn't selling another brand of cola, I think you have a good shot.
PS I can't access your site due to a DNS error. Is it already up and running?
Work for Change & GET PAID!
Why dosen't the guy just sell the domain to Coke for his costs ~$100-200 US and get himself another name. I just checked and www.cokeabuser.com and www.cokeaddict.com are both available. I'm sure he could get a useful name. Hell mabey coke would reimburse him with some of waste byproducts they generate from their cocao leaf extract process. Just to help him attract some new customers to his site.
If only he had a site up, we would all be championing him.
I suspect this may be redundant with 400 posts already but I dont have time to read them all.
no sig.
Some people don't mind being stopped by the police and questioned without reason. Well, if you are not doing anything wrong, what is the problem?
In Germany, when the Jews were asked to wear identification people would respond, "what's the big deal?"
Some people consider me a crackpot because I made my employment discrimination claim public. Other people responded, "hey, that's happening to me, what do I do?" or "hey, it's not just me!"
Now it's a free speech issue. What if Clinton sued Paula Jones for libel? She did not prove sexual harassment. Mattel has not proven my statements false. They are mostly my opinion, though you may not agree with them, there is no such thing as a "wrong opinion." Maybe a crackpot opinion, but not wrong.
Freedom is not free, it must be fought for.
Fight Spammers!
BUT, if people always give in, then companies will keep bullying people! Sometimes, you have to fight!
I'm bigger than that little guy with the slingshot..Goliath
Fight Spammers!
So what we really need is some organization like RTMARK or the now-defunct McDonalds.Org to snap up a few tasty domains (and subdomains) such as:
- everyone-hates.co.ke
- there-are-toxic.chemicals-in.co.ke
- q-what-causes-brain.tumors-a.co.ke
- co.ke.co.ke
- snort.co.ke
- another-word-for.burnt-coal.residue-is.co.ke
I like it already.spawn_of_yog_sothoth
Well, I did a whois and noticed that the coke.ch domains is owned by someone living in the US. Isn't that pretty odd ? .ch and then they should have the domain. The domain has not really been registered that long either.
Coca-Coal company probably sell coke in
So this guy is probably a squatter trying to turn people against Coca Cola Company.
Domain name:
coke.ch
Holder of domain name:
Somjad Puangngern
S Spring APT- C 1142
US-62704 Springfield, IL
United States
Technical contact:
Somjad Puangngern
S Spring APT- C 1142
US-62704 Springfield, IL
United States
Date of last registration:
07.05.1999
Date of last modification:
24.11.1999
Coke is a product of a process called coking, in which a coal is heated in a coking oven, out of contact with air, in order to drive off moisture an volatile matter.
Coke is the fused solid residue left when certain coals, pertoleum, or tar pitch are heated in an atmosphere excluding oxygen, so as to expel their volatile content. The process of thus decomposing these fuels into their gaseous and solid fractions is known as destructive distillation or carbonization.
Coke is, and has for a very long time been, used in metallurgical processes such as the preparation of steel from iron, and the creation of various alloys.
Add to this 'alternative' connotation the fact that the Original Coca-Cola was so named precisely because it was infused with the addictive essence of the coca plant, and you have the a very sad situation.
Coke is an engineering and fossil chemistry term. Coke is street slang for cocaine. Coca Cola was made with cocaine due to it's taste, mind altering effect and resultant 'captive market' of addicts. Cocaine was part of the recipe until it was made illegal.
That Coca Cola is going after a site named (arguably) after the substance to which Coca Cola owes it's very existance, is laughable. The fact that Coca Cola is trying to leverage it's 'trademark' above the importance of a scientific and engineering term, is down-right scary!
It's like Nabisco trying to sue Apple (or better yet, NASA) over the word Newton.
"It's not a cookie Mother, Newtons are fruit and cake."
WRONG junior executive, Newtons are a unit of force!
Common sense people, that's all we ask.
-- What you do today will cost you a day of your life.
But is it a trademark for cocaine, or for addiction resources? If not, no conflict exists; it is possible for the same name to be used by multiple entities without infringement.
My blog: http://www.seebs.net/log/ --- My iPhone/iPad app: http://www.seebs.net/seebsfrac/
coke(1) n. & v. --n. 1 a solid substance left after the gases have been extracted from coal. 2 a residue left after the incomplete combustion of petrol etc. --v.tr. convert (coal) into coke. [prob. f. N.Engl. dial. colk core, of unkn. orig.]
coke(2) n. sl. cocaine. [abbr.]
Trademarks are only really effective against items in the same genre, or other things that are trying to profit from use of an established name... If I had a kids show, and trademarked the characters names (say Ham Sandwich (ham is an uncommon but real first name, and Sandwich is a valid surname), then tried to enforce my copyright on Oscar Meyer for use of 'Ham Sandwich' on little lunchpacks, I should be drug out into the street and shot. Similarly, if this isn't just a case of domain squatting to gain money, and there is a historical non-soda related use for it, Coca-cola's lawyers (or all lawyers) should be drug out into the street and shot (maybe with a snurf gun).
And I mean that is the kindest way.
"It's tough to be bilingual when you get hit in the head."
For what it's worth, the Coca-Cola website states that they do own the trademark for "Coke": http://www.thecocacolacompany.com/sitemap/frames.a sp?cate gory=http://www.thecocacolacompany.com/tccc/tradem ark.html
In Soviet Russia...michael would be rotting in Siberia!
Conflicts are not the issue with trademarks. Confusion is. The Coca-Cola Company owns a great many properties, real and intelectual, and does a great many things. One of the things The Coca-Cola Company does is manufacture a soft drink they brand Coca-Cola. This soft drink is also branded as Coke. The Coca-Cola Company owns trademarks to protect these brands. These include "Coca-Cola" (tm) and "Coke" (tm).
The Coca-Cola Company is probably the best commercial branding enterprise ever created. By spending untold millions (billions?) over the years marketing Coca-Cola the soft drink, The Coca-Cola Company has created a very strong association in the public between the trademark brands and the products. Be honest now: when someone says "coke" do you think soda or coal? In truth, it doesn't matter what you (or any specific individual) think. It matters what the hypothetical "average person" thinks. If you market a product branded Coke (e.g. Coke-brand cedar shoe inserts) and the "average person" would think that your product was manufactured by The Coca-Cola Company, then you have created Confusion over the mark and the courts will slap you down (remedies available to owners of trademarks whose marks are violated are extremely far reaching). It doesn't matter that The Coca-Cola Company doesn't (I presume) manufacture or market any cedar shoe products. If people are confused you are violating The Coca-Cola Company's mark.
Trademarks are unique in US IP law. Unlike patents and copyrights, a trademark need never expire. The protections offered by the law are far reaching. However, the protections are not automatic.
A copyright lasts until it expires, no matter what the "author" does (short of explicitly transfering the work to the public domain). A patent is still a patent whether or not the patent holder enforces it. But trademarks are different. They need to be regularly renewed. The owner of the mark must proactively police the mark. If they do, they can develop very strong trademarks that mae their brands powerful money making machines. See "Coke" for a good example. If they don't the mark "loses distinctiveness" and becomes generic. This means the mark dies. See "aspirin" which used to be "Aspirin" and owned by the original Bayer.
Trademarks holders that don't police their marks lose their marks. And a mark holder cannot decide to let certrain "benign" infringements pass. If they do they risk losing the mark entirely. The only available options are licensing the mark or forbiding its use. And if you decide to license it you create a huge number of potential headaches for yourself. What if the licensed product maims somebody? After all, they trusted your mark as an indicator of quality. Blah blah blah.
So when somebody registers coke.ch, The Coca-Cola Company has to go after them. And besides, who is he kidding? coke.ch? Why not cocaineabuse.ch or something like that? "Coke" the mark is powerful because The Coca-Cola Company made it powerful. They are entitled to reap the benefits of the powerful mark and have an affirmative duty to protect the mark.
Q:How many libertarians does it take to stop a Panzer division? A:None. Obviously market forces will take care of it.
There has been a lot of noise about how to reconcile domain names with trademarks over the last while. Personally, I can't see why we've let this happen. I am against all of the recent anti-"squatting" regulations that have been introduced to try to solve a non-problem. Public administrators are just being lazy and derelict in their duty regarding this issue. (As usual, IANAL.)
First, note that domain names were not originally constructed with the intent that they would be proxies for trade name ownership. There is nothing that necessarily says that this has to change. This is very important to understand. For example, I can put "Coca-Cola" on a sign in my property, even if I sell things publicly from that property, and not violate any trademark. Further, Slashdot can forward this comment to you and make money off of advertising without violating Coca-Cola's rights.
Now, if I try to sell you something and I specifically state in the course of this business that I, in some way, represent a holder of a specific trade name or their goods, then by all means the trade name holder should sue my pants off.
There are two key problems with the concept of equating trade name law and internet domain names. The first, and less troublesome to some people, is that there is some implied prior right to the name as an internet resource locator simply by registering the domain. If someone comes along later and trademarks it, the domain registrant should be able to retain all rights to the use of the internet domain if that domain's registration occured before the filing of the trademark. I believe that this is the current wording of, for example, American anti-"squatting" law, but I would go further and propose that even if the trade name registration occured first, the domain registration should be allowed to stand. The owner of the domain name should not, of course, contravene the original restrictions imposed by trade name law. For example, they can't pretend to be the company that sells goods under the auspices of that trade name. But the precise nature of these original restrictions, and a better reason to be leary of allowing trade names to "trump" domain names, is best analysed by discussing the second fundamental problem with such a system.
Again, IANAL, but my understanding of trade name law goes something like this. (Note that I'm sluffing over the difference between trademarks and trade names; if I remember correctly it's not crucial. Also, see http://www.law.cornell.edu/topics/trademark.html ) I can apply for protection of a particular word or term used in the sale of products. I can only make this application if I currently sell products using this name in the jurisdiction of the registering administration, and as long as no one else has already registered the name for this particular purpose in that jurisdiction. The particular purpose part is essential; the legal protections offered me by such registration will only restrict others from using the name if they are selling a similar product to the one that I sell, such that there could be a reasonable customer confusion (in a legal sense) brought about by the conflicting use of the name.
You might doubt that last bit about similar products. But note that there's nothing wrong with trademarking "Yankee Coke" to sell charcoal, despite Coca-Cola's trademark on the word "Coke". (You could even sell "African Cola Coke"; check a good dictionary!) Coca-Cola Inc. (or whatever their official designation) owns the Coke trade name only in relation to soft drinks. (For the third time, I invoke thee: IANAL.)
This is the second key problem with any scheme that equates trade names with domain names on the internet. First, note the dreaded "J" word: "jurisdiction". If it's only legal for one entity to own the trademark to sell "PowerTool" auto repair equipment in Canada, and only legal for a different entity to sell "PowerTool" auto repair equipment in the US, who gets the ".com" domain name? What if there are legal "PowerTool" registrants for an identical product category in different states? Will it be illegal (or at least fiscally hazardous) for anyone to register a ".com" domain name for business use unless they have international registration for the trade name and sell into multiple countries? If so, we better tell people fast!
You can't even fix the problem by forcing everyone to work off of a nested domain naming system, such as "powertool.orange_county.ca.us". What if someone in Orange County sells specialty lego pieces using the PowerTool name? Who gets the domain now?
These two essential contradictions look like a double death blow to the viability of any scheme that equates trade names with domain names. However, the suggestion of nested domains does point the way to a possible way around this difficulty. Note that this is simply a political difficulty, NOT a problem - it's just an opportunity for current trade name owners to extend their reach. Of course, we'd all like to have some way to find Coca-Cola Inc.'s "Coke" site if we're looking for it, and search engines are not enough to placate the needs of the legally anal around us, since these people reason that the public could still be fooled by accidentally visiting a site with an implied link to Coke. (Whew! IANAL.)
The solution is too sensible to be undertaken by most governments. It also doesn't allow them to scapegoat anyone, it doesn't allow them to stomp all over the previous custom of a minority, it doesn't pander to corporate interests, and of course it requires them to actually get off their duffs and be constructive. Don't expect to see it anytime soon.
However, it would be perfectly simple for any administration that oversees trade names within its jurisdiction to simply set up a web site that references those legal names to the holders' internet addresses. Uh, they're called links. If more than one business type owns the rights to a particular name, list both links under the name and include some identifying information about each owner, such as a brief description of their class of goods. Link to sites that contain higher-level jurisdictional data, as a state might defer to national registrations - or better yet, put together the technical means to include those registrants automatically in your lower-level searches. It's actually fairly straightforward.
So, why do domain names have to equal trade names? Why did we all allow this to slip toward a standard assumption? Why can't I register any domain name that I might please, and expect to have actually done so? Why do those who protect trade names feel that they must convince the public that domain names necessarily connote legal trade name ownership? Why don't they see the obvious problems with that system? Hey, hire some programmers and the "problem" disappears. And there are plenty of coders around, you just have to be prepared to pay them and have a clue!
That our governments are too lazy to hire competent programmers to put together systems that effectively manage their jurisdictions' registration programs is an abrogation of their duty, but it's exactly what we should expect. Who's surprised that they're also blaming domain registrants (aka "squatters") for the "problem"?
Word Mark: COKE
Goods and Services: IC 025. US 022 039. G & S: footwear.
FIRST USE: 19880311.
FIRST USE IN COMMERCE: 19880311
Mark Drawing Code: (1) TYPED DRAWING
Serial Number: 75114281
Filing Date: May 17, 1996
Published for Opposition: January 21, 1997
Registration Number: 2052760
Registration Date: April 15, 1997
Owner (REGISTRANT): Coca-Cola Company, The CORPORATION DELAWARE One Coca-Cola
Plaza Atlanta GEORGIA 30313
Type of Mark: TRADEMARK
The date listed is the "date of last registration", which means that the domain name owner was last registed on July 5, 1999 -- which could have been a renewal. (Not sure, my own domains aren't up for renewal yet.)
...Open Source isn't the only answer -- but it's almost always a better value than the alternatives...
Several (most?) of the "Ask Slashdot" questions I've seen lately involve legal issues better suited for attorneys and legal scholars.
:)
This site is targeted at "nerds" -- apparently the technical/computer kind. What good are legal questions in such a forum? I can count on one hand the number of real attorneys I've seen posting on this site in the past. Of those, I only see a few still posting these days (where did you go, Hawk?
Questions like this tend to elicit a lot of knee-jerk emotionalism, a lot of "IANAL, but I think my Business Law I professor once said....", and a frightening amount of uninformed or just bad advice. Worse yet, some of the bad advice gets moderated up, perhaps giving an impression of credibility. As proof, I offer a recent copyright-related story in which a highly-scored post suggested a "poor man's copyright" -- mailing yourself a registered letter with the song inside. Five minutes of research will show that this is a popular legal myth.
I often find a lot of good technical information in "Ask Slashdot", but I consider these diversions into legal matters to be somewhat pointless at best. At worst, they are dangerous. Woe be to the person who follows a course of action based on what they read on Slashdot. They may well find themselves on the losing end of a lawsuit. I don't think, "The guy on Slashdot said it was ok," is a defense most judges would honor.
For this reason, I ask the Slashdot editors to please reconsider the number of law-related "Ask Slashdot" articles. Technical questions may not generate as many comments, but they may provide more useful information. You have an audience of technical professionals, not lawyers (although I'm sure some of them are honest-to-goodness attorneys).
For those who are considering posting to "Ask Slashdot" for legal advice, I urge you to find a real attorney instead.
Thanks for your time. Now back to the peanut gallery.
Save the whales. Feed the hungry. Free the mallocs.
All the more reason to move to national TLD's across the board. Duke it out in your own country if you want. Coca-Cola is an America company, and as such, couldn't say diddly squat about something in the Swiss TLD.
Either that, or open up those new seven TLD's that have been talked about forever. Heck even they could be under a national 2-letter TLD. Big corporations are bullying the web too much.
There are only so many reasonable domain names available, and LOTS of people that want to use them. There is going to be name collision across TLD's. Face it. If every trademark owner has to buy up their trademark names in every TLD, there'll be nothing left for anyone else to use! You might as well eliminate the current TLD's then and go to www.coke, or www.pepsi, or www.nike! Having various TLD's is supposed to allow for exactly the kind of thing they are trying to squelch!
Trademark law needs to be updated to handle this exact situation. And big corporations need to get their hands off domain registration policy-making.
Constitutionally Correct