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Victory for small business in domain disputes
A reader sent us the link-o-meter to the story about how Clue Computing beat toy giant Hasbro over a 3 year long legal dispute over clue.com (Hasbro owns the Clue board game). Some are hoping that this will mean small business have a precent to call in in the case of legal disputes over names trademarked by different folks-and in related news, Hasbro will be purchasing Wizards of the Coast, Magic:The Gathering card maker, and owner of TSR, Inc.
On a wider note, maybe Rob should add a billing page to slashdot.org where you could use a credit card to donate to a good cause.
Wizard's of the coast actually owns Game Keeper (the mall chain store) now too. It astonishes me that Wizards is allowing themselves to be bought out. But more importantly worries me that many games and game stores might be hurt irreparably in the transition. Wizards bought another Role Playing Game previously from White Wolf Games called "Ars Magica", which was in the same line as Vampire the Masquerade and other Storytelling rpgs. Ars Magica was very quickly dumped on Atlas Games which has since mired the production.
It would be a shame if Hasbro dumped D&D entirely or even put it on the back burner as many gaming stores could be hurt by this move.
For more info on the aquisition goto wizards site.
Joseph Elwell.
This is only partially true. A trademark is limited in scope - usually to a particular area of trade. There can be no infringement outside of this area (with the exception of well-known marks). The classic example in the U.S. is "Delta". I can think of three right now - Delta Airlines, Delta Faucets, and Delta Dental (insurance). Despite the use of the same name, these three do NOT conflict as far as trademarks go.
Well-known marks would include something like McDonalds, which covers so much ground that McAnything is going to have a problem (yes, I know about the McDonalds in Scotland, and there have been court cases in the U.K. about this very issue.)
Hasbro is throwing its weight around. Based strictly on trademark law, I'd expect Hasbro to lose the appeals, since 'Clue' is not a well-known mark, and there's no significant cross-over between areas of trade. I just hope that Clue Computing can hang in there for the rest of the proceedings.
...phil
...phil
"For a list of the ways which technology has failed to improve our quality of life, press 3."
Basically, while we all sit around and criticize these companies for throwing their weight around on smaller companies (don't get me wrong, I do it too), a company really has no other choice if they want to protect their trademark. According to corporate law, if someone can prove that you don't enforce your trademark, it becomes dilluted and your right to use it is weakened.
So a company with a trademark must use draconian measures of enforcement when defending their trademark -- they have no choice if they want to prove that to a court that they're enforcing it. And since cybersquatting has been a problem in the past, companies are probably advised by their lawyers that they MUST track down ANY potential use of their trademarked name, even in situations where it won't apply.
Of course, that means nothing to the poor small business owner (or private owner) who coincidentally is using a name that has been trademarked. It's certainly not fair to them at all -- and they don't really have the funds to defend against such matters, nine times out of ten.
It seems like a situation where no one can really win. If a company wants to retain the rights of their trademark, they have to crack down in every situation (which is why Red Hat is doing what they're doing these days). On the other hand, there's no reason why someone in a business completely unrelated to the trademark should ever have to be pushed around by a corporations legal teams.
The only way out of this is to either a) strengthen the rights of the people holding the trademark, so they don't have to enforce it all the time, or b) weaken the power of trademarks significantly, or even abolish it all together, so that no one can lay any kind of legal claim to a word or a phrase.
Either option has its problems, but I think that abolishing trademark would be better than strengthening it -- if it were strengthened, companies would probably find it more "convenient" to force people who had trademarked words in their domain names to hand them over, even if the domain names were used in a way completely unrelated to the trademark itself. If that were the case, sites like ajax.org would have been instantly overrun and they would have had no legal recourse whatsoever.
Hope that wasn't too disjointed...
Eviscerati.Org: All Hail the Eviscerati
Its good that someone finally has woke the heck up over in the Justice System. No one really defined _what_is legal to register and what isn't. But you can waste money doing a trademark search.
Lets quote NSI shall we
Revision 03 Effective February 25, 1998 1. Network Solutions, Inc. ("Network Solutions") is responsible for the registration of second-level Internet domain names in the top level COM, ORG, NET, and EDU domains. Network Solutions registers these second-level domain names on a "first come, first served" basis. By registering a domain name, Network Solutions does not determine the legality of the domain name registration, or otherwise evaluate whether that registration or use may infringe upon the rights of a third party.
This is solely written to deter themselves from suffering legal actions... point blank
2. The entity applying for a domain name ("registrant") is solely responsible for selecting its own domain name ("domain name") and maintaining for the continued accuracy of the registration record. The registrant, by completing and submitting the Domain Name Registration Agreement ("Registration Agreement"), represents that the statements in its application are true and that the registration of the selected domain name, to the best of the registrant's knowledge, does not interfere with or infringe upon the rights of any third party. The registrant also represents that the domain name is not being registered for any unlawful purpose.
Does this mean that if I registered "whatever.com" and three months down the line someone trademarked it, they can now sue me? Some of these laws are a joke... I can see whay they would make these laws being it would deter some moron from registering a site to make massive money, but there a Corporate entities who turn around and bastardize these laws as well
3. Network Solutions neither acts as arbiter nor provides resolution of disputes between registrants and third party complainants arising out of the registration or use of a domain name. This Domain Name Dispute Policy ("Policy") does not confer any rights, procedural or substantive, upon third party complainants. Likewise, complainants are not obligated to use this Policy.
More legal mumbo jumbo from a half assed registrar
http://www.netsol.com/rs/dispute-policy.html
6. Indemnity. The registrant hereby agrees to defend, indemnify and hold harmless (i) Network Solutions, its officers, directors, employees and agents, and (ii) the National Science Foundation ("NSF"), its officers, directors, and employees (collectively, the "Indemnified Parties"), for any loss or damages awarded by a court of competent jurisdiction resulting from any claim, action, or demand arising out of or related to the registration or use of the domain name. Such claims shall include, without limitation, those based upon trademark or service mark infringement, tradename infringement, dilution, tortious interference with contract or prospective business advantage, unfair competition, defamation or injury to business reputation. Each Indemnified Party shall send written notice to the registrant of any such claim, action, or demand against that party within a reasonable time. The failure of any Indemnified Party to give the appropriate notice shall not affect the rights of the other Indemnified Party. Network Solutions recognizes that certain educational and governmental entities may not be able to provide complete indemnification. If the registrant is (i) a governmental or non-profit educational entity, and (ii) not permitted by law or under its organizational documents to provide indemnification, the registrant must notify Network Solutions in writing and, upon receiving appropriate proof of such restriction, Network Solutions may provide an alternative provision for such a registrant.
In other words money talks...
What I wanna know is...
What is Network Solutions going to do in a cross-registrar dispute?
What if they weren't the registrars how are they going to handle things. And when just when are the court systems going to stop letting people twist laws?
oh well back to work...
Want Root?
"Clue" is a common word. An individual should be able to take any common word and make a domain out of it. It's the company's fault if they name their products single words that appear in /usr/dict/words or personal names (veronica.org dispute). It's the same with movies. If you want a domain for it, don't call it a single word. Make a creative name and your product would be more recognized.
t ogetformybirthday.com :)
Also, it's a user's fault if they type in "www.clue.com" and assume they are at Hasbro's site. I'm sure there's a card in the box that gives the address, or people can type the company's name. Sometimes I just guess the URL if I'm looking for something, but I look at content if the site comes up.
Are we to assume that if someone knows the name of a product, they should just be able to go to www..com and get there?
Surf on over to www.thatonethingisawinbobsofficelastyearandwanted
The trademark and copyright interests are lobbying ICANN very heavily (including big money Hollywood interests) for stronger protection, even beyond what the law currently gives them. They can't get Congress, or even the courts, to back them up, so they are lobbying hard within ICANN, and ICANN is listening, not wanting to have to fight big corporate interests who are the ones actually paying ICANN's bills right now (see Follow the Money).
Soon individuals and small businesses with find themselves in the position of having to do what Clue Computing did, be the plaintiff in a case suing to KEEP your domain name, since under these new policies Trademark holders won't be obligated to take you to court and prove infringement or dilution. You will have to prove you aren't infringing, thus shifting the burden of proof as well as the expense.(Clue Computing sued NSI to prevent implementation of the Dispute Policy)
Not a very promising outlook.
I've been advocating some sort of grass roots campaign to rally against these actions by ICANN, but some people just see that ICANN is fighting NSI and think that is a justification for them trampling our rights.
--
William X. Walsh - DSo Internet Services
Email: william@dso.net Fax:(209) 671-7934
Editor of http://www.dnspolicy.com/
The outcome is clearly correct. The question is whether Hasbro should be sanctioned for an abusive filing for initiating the frivolous litigation.
There are *many* categories of trademarks in the U.S. A trademark in one category does *not* in any way block the identical trademark from being used in another category. That Hasbro has registered "Clue" as a game would in no way stop Ford from building a car called "Clue."
Somehow, Hasbro has gotten the idea that trademarks reach *much* farther in domain names than they do anywhere else. This is simply fallacious, and worthy of sanctions.
hawk, esq., once again griping that judges in general are far too slow to use their authority to sanction frivolous filings.
(2) Establish a convention whereby anyone who has the trademark "foo" in the country with country code "xx" can get "foo.r.xx".
(3??) As a condition of taking "foo.r" or "foo.r.xx" domains, a trademark holder should relinquish any ".com", ".net", or ".org" domains they own that contain the trademark, so that the namespace doesn't become congested from large companies grabbing up every possible domain name containing their brand names.
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