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Domain Registrars Not Legally Responsible for Domain Names
mike_markley writes " CNN has an article that talks about a suit that Lockheed Martin filed against NSI over a domain that allegedly infringed upon Lockheed's copyrights. The 9th US Circuit Court of Appeals decided that NSI wasn't responsible for trademark infringements such as this. " Good - the Court's basis was recognizing the need for registrants to move with speed, unlike the trademark office.
I wonder if it'd be ok if you registered a domain like "microsoft-tm-trademarkisthepropertyofmicrosoftcor porationallrightsreservedyaddayaddayaddl egalstuff.com". It's got a disclaimer built right in!
In any case, I feel a lot better about made-up words being trademarks -- people's names and common words/phrases shouldn't be removed from the language just to protect some corporate interests!
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Oh well, too late.
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The only problem here is persuading Coca Cola that cocacola.com should be free for the taking...
.com domains, even if they are international and if you have set aside a .tm.us space. For example, what about a situation where a strictly US company registers a .com that infringes a US trademark? The international argument is sort of moot.
If you are going to enforce trademarks at all, why restrict it to just a slice of cyberspace? The motivations for enforcing trademarks still apply to the
Sorry, had to try for the only first post I'd ever get in my life. :P There goes my karma, but at least I can brag to my friends. heh
Seriously it does figure that NSI wasn't held responsible. Why should they? They're not the ones who are doing the copyright infringement. The person who is hosting the website is, thus go after them!
Of course I know why they dont go after them. The person with the site is probably just some regular joe schmoe who doesn't have much money. NSI on the other hand is a real company with real money, so it makes sense to sue the people you have a chance on actually getting something other than the URL from.
But, it doesn't address the underlying problem -- trademarks and domain names don't mix. Paramount, for example, has a trademark on the letter Q. Don't use that in your domain name! In fact, basically every word you can think of is someone's trademark. If that means that they have the exclusive rights to any domains containing that word, the whole system is going to break.
I'm not sure what the fix is: trademarks are a pretty good basic idea. But they were meant to work within specific areas of commerce, and be limited geographically. It doesn't scale up to a national level, let alone a worldwide one -- and it gets even worse when companies of totally different types are in competition for the same ".com" domains.
(A side note -- I don't mean to be pedantic, but trademark is very different from copyright. The
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The ruling recognizes the need for speedy, high-volume registrations of domain
names, said Ronald L. Johnston, lawyer for Network Solutions.
Yup, This is all about the money. Of course NSI like cybersquatters. Squatters not only directly pay NSI for all the names they gobble up, but indirectly pay them by getting companies who really want them to gobble up every permutation of their precious trademark.
It's a double win for our favorite DNS registrar.
It has been a common practice for companies alleging trademark infringement in domain names to also sue NSI. I don't think that NSI has ever been held responsible. /. story from a while back about how some Court was the owner of several offensive domain names. NSI, in order to continue its luck in avoiding liability, routinely gives domain names to the Court as soon as there is a suit regarding the domain. That way, their hands are clean.
This is related to the
Apropos to this, HR1225 was up for discussion in the U.S. House today. If it's not a law now, it will be very soon. This is a law with bi-partisan support that establishes trade-marked names and phrases in domain names as falling under similar, if not the same, rules as trade marks in any other published form.
Personally, what I fear the most about this bill, after having heard a few congressmen talk today, was the perspective these representatives are taking. Their concept of names and other trade-marked items as possitions that others are not allowed to have, though highly entrenched in the current system, seems so much more of a broken view to me than the notion that trade marks are more of a formation of identity, so that unathorized use of trademarks is a forging of identity and misleading of consumers rather than appropriation of property.I'm curious to hear if the practical effects of current laws could be the same under this newer view point, as it would certainly seem to make future changes easier.
-hm
Of course it's not the registrar'r job to enforce trademark law. If I put an advertisement in the newspaper, it's not the newspaper's job to research whether I'm entitled to use any trademarks that are present. Heck, it's not even their job to research what words and symbols are trademarked.
While I agree with your perspective, I think that there is a good argument for holding NSI responsible.
Whether or not NSI likes it, they have taken up the huge (and lucrative) job of coordinating the registration of most of the domain names on the Internet. Most registration goes through them.
NSI is the party that could most cheaply make a decision about whether a serious trademark violation occurs and solve the problem. If, for example, Lockheed can show NSI that it holds several registered "Skunk Works" trademarks, NSI can "hold" ownership of the domain or block registration until a court decides. NSI claims that the registration process is entirely automated. That is true, but as soon as Lockheed has brought the issue to NSI's attention, NSI can no longer claim that there is nothing that it can do. There is at least some degree of fault here.
The alternative (chosen by the court in this case) is to force Lockheed to go straight to court and let the infringer keep the site in the meantime. Given the judicial backlog that exists right now, it is probable that it would be some time before a court would make a decision. In the end, for an obvious infringement case, the court will have spent many taxpayer dollars to reach a decision that the NSI might have made quickly on its own.
The main problem with this argument is that the NSI would basically become the court and use up just as many judicial resources. But, keep in mind that this would be a very specialized "NSI court" that dealt only with Internet domains and trademarks. Plus, maybe the courts could decide to hold NSI liable only if they completely ignore a trademark holder's plea for help (the current policy). There is no reason that the NSI couldn't act as a filter to solve the "obvious" trademark problems, while the slower and more expensive courts are reserved for the "tough" problems.
The whole suing back and forth for silly things like this, and trying to place the blame on people who are so obviously not responsible for these type of things is just inane, and one of the major reasons why people in other countries laugh at the U.S. in^H^HJustice system.
".. I like pork!"
".. I like pork!"
- Brak
It seems to me that if there is a dispute over some trademark and both parties have a claim to the trademark in some domain, they should both be required to disambiguate and neither should retain the plain name.
So, instead of a dispute over "apple.com", both the record company and the computer company might have to pick more specific domains: "apple-computer.com" and "apple-records.com", with "apple.com" unassigned or possibly a directory of companies with "apple" in their name.
Sometimes, the distinguishing identifier would not (just) be the product but the geographic area. In tat case, the ".us" could be used, or it could get added to the domain name: "acme-paints-nyc.com", or "acme-paints.nyc.ny.us".
The key point is that neither party in a dispute should own the ambiguous domain name and both should be required to disambiguate. Note also that this does not require any technical or administrative infrastructure; the disambiguated domain names don't need to be in a hierarchy or follow any particular naming convention, they simply must distinguish the disputed trademarks clearly.
The GNU website reports that the House of Representatives is going to vote on a bill that, if passed, is guaranteed to make us go through more of these nonsense lawsuits.
Why don't people realize that domain names were never intended to be identified with any sort of trademark? To refresh your memories, the domain name system was introduced so that we wouldn't have to remember awkward IP addresses. But it looks like this reason has been totally forgotten/ignored in the mad rush to "appropriate" a piece of the web.
I, for one, hate this attitude of rushing to register every damned domain that you can lay your hands on. Lots of these companies/trademark holders go on a wild spree, not only registering their trademark in all the TLDs (top level domains), but also registering all sorts of variations of their trademarks, including typographical errors, misspellings, etc. Most registrars actually encourage this! I am appalled. The .com domain has become totally corrupted with all sorts of websites that can hardly be described commercial. Same goes for the other TLDs.
Stop the trademark-domain crap already!
Sreeram.
But you pointed out the best reason for NSI to not be liable: they shouldn't make the decisions. NSI does not have the legal purview (sp?) to make any trademark decisions, even "obvious" ones.
They are not an arm of the government, and even though (or perhaps "especially since") the data gathered is under a government contract (from the executive branch, I might add), it is not their responsibility to adjudicate trademark disputes, but rather that of the judicial system. Whether or not the courts can handle the load is a different matter entirely, but NSI shouldn't be acting in the role of the judicial branch, since they are affiliated with the Dept of Commerce.
Besides, considering how much else they screw up, let's not suffer from the delusion that they're anywhere near capable enough to handle trademark disputes.
"You can never have too many elephants on your team."
You know what's at the heart of the whole com/net/org mess? Mis-management.
.ca honchos should get together and REVOKE INTERNIC.CA on moral grounds!
It used to be that you pretty much had to follow the guidelines with regards to domain registration.
.com = commercial entity
.org = non-commercial organization
.net = part of the network infrastructure.
And you had to be pretty much honest about it (or at least, most people were honest without being forced to).
The problem, I think, is a compound one.
1) The Internic did not enforce these guidelines. People were permitted to register whatever the hell they wanted.
2) The Internic did not verify any contact information or business information. I'm willing to bet that a GREAT number of domain registrations are fraudulent (as in, the information given is false and misleading)
3) The Internic took people's MONEY for this. So.. they can't very well go back and say 'Your domains have been revoked because they are fraudulent registrations' when they accepted your money in the first place!
Also... *NOTE*
REGARDING INTERNIC.CA
Internic.ca, unless someone informs me otherwise, is a SCAM. (or at least, very misleading.)
The way to register CA domains is described at www.cdnnet.ca. You contact one of the regional registrars DIRECTLY by mailing them the appropriate forms. It does *NOT* cost any money. (there are strict guidelines as to what you can and cannot register, and as to how many domains per entity you can have (one)) Every canadian can have their own domain, for free.
INTERNIC.CA makes their page look very official. THey charge a $70CDN non-refundable FEE simply to SEND your registration to the registrar. They have absolutely NO say in whether or not you can ahve that domain. In other words, although they DO state in the fine print that this is all they do for you, they are NOT actually providing you with ANY kind of service WHATSOEVER> The exact same form you send them, you could send directly to a registrar yourself! It has been this way for a decade.. and has not changed to my knowledge.
I really think that the
- Make a new domain: .tm.us .us domain, so US law can be applied (.com shouldn't be subject to US trademark law, it was intended for international use)
- Only US trademark holders can register in this domain
- It's part of the