Am I going soft??

[Kazam]

Question for domain traders about practice NOT how the law sees it: I have been staying away from buying names and misspellt names that could be to close to a trademarks. Now is it just me or are 1000's of people buying misspellings of trademarks and the blatently linking it back to the trademark holders site ? with a affiliate linking code obviously. Making tone of cash by directly infringing on a trademark?
i have cleared my porfolio as i didnt know anything about trade marks before.and i have stayed cleared of any names that are not generic.

[actnow]

GSK08, You are doing the correct thing in avoiding TM problems.

It's not worth the financial risk and exposure.

Eventhough, I know I could grab a couple names with TM exposure,
and sell for a nice profit. I don't want to take the chance.

I'll let someone without assets have the problem.

[Garry Anderson]

It is only sensible to avoid conflict with the law - I also do not get domains like fordmottors.com!

I do use WIPO.org.uk and others for free speech issues.

But there is a fatal flaw in your plan, when you said, "I have been staying away from buying names and misspellt names that could be to close to a trademarks."

Try entering ANY word into USPTO.gov trademark database - you will see virtually every one taken.

The ONLY way to identify registered trademark domain, from a normal domain, is to use an identifier - like .reg TLD.

This could replace the registered trademark symbol ®.

[Kazam]

Garry not o sur ewhat you mean with the last bit " like -reg .ltd."

Thanks to actnow for the advise as well. I thought the same if I were to lose my whole portfolio of names because of a TM dispute. I will cry for weeks and 4 years of work will be gone NOT to mentions all the small but steady income it brings anyway.

Thanks

[Garry Anderson]

It is a fact that businesses with trademarks take away domains from the lawful owners - on the pretext that they are defending their trademark.

Truth is domains are not trademarks - most businesses (with and without trademark) share the same or similar words.

Even initialisms. For example, the World Trade Organization (WTO) shares its initials with five trademarks in US alone.

Also - if you are not doing anything unlawful - why should you be prevented from using (choice of words).(whatever) for your own website?

People could identify that the domain was owned by trademark holders if they used Top Level Domain .reg

For example:

apple.computer.us.reg
apple.tobacco.us.reg

Tell the difference?

Apple Computers could still use apple.com - just directed to apple.computer.us.reg as certification.

This is purely adding certificate of authentication and trademark directory for the Internet.

[namedropper]

gsk008:

Garry's little scheme seems to be to set up a .reg extension. He has ignored repeated explanations from intellectual property lawyers on why such a strategy would not work. It seems that we are now blessed to have him offer it up as a suggestion in every Legal Issues and Domain News thread until he gets bored and wanders off.

[Garry Anderson]

The Facts
~~~~~~~

As virtually every word is a registered trademark - how is anybody "staying away from buying names and misspellt names that could be to close to a trademarks"?

Overreaching corporations have been 'stealing' domain names from the lawful owners - such as your good selves.

This 'scheme' provides additional functionality - that of certificate of authentication and directory services. Businesses lose nothing - they gain additional functionality.

Intellectual property lawyers have said this 'scheme' would identify all registered trademarks.

But - John Berryhill recently informed me that US Patent and Trademark Office allows US businesses with similar marks to produce similar products. It is undeniable - you cannot trust that a US registered trademark came from one particular supplier. This goes against everything that trademarks stand for, including the basic tenet of trademark law (protect consumers and trademark owners from confusion in the marketplace). The 'monkeys' in charge changed the rules to allow this to happen.

Dan should be told he cannot change facts with his little digs.

Ask him to deny any of these facts - he will not be able.

[jberryhill]

"The 'monkeys' in charge changed the rules to allow this to happen."

They did? Which ones, Garry?

Do tell us when the first US federal law on trademarks was enacted, and what were its provisions relating to the common law concurrent use doctrine (which originated in the UK).

And tell us when it was "changed".

[jberryhill]

"I have had to let 100's of names be takin by other people and they are cashing in BIG time."

Duo cum faciunt idem, non est idem.

Nosce te ipsum.

[DaddyHalbucks]

Question for domain traders about practice NOT how the law sees it: I have been staying away from buying names and misspellt names that could be to close to a trademarks. Now is it just me or are 1000's of people buying misspellings of trademarks and the blatently linking it back to the trademark holders site < with a affiliate linking code obviously. Making tone of cash by directly infringing on a trademark.

SO question is HOW DO THEY GET AWAY WITH IT?

Remember in practice not in theory/law. Do the companies only want the name or the name and the money. Can't see how it could be easy to get the money or cheap for them? I have had to let 100's of names be takin by other people and they are cashing in BIG time.
+++++++++++++

You are doing the smart thing.

Of course, you can make money poaching trademarks --but you can also make money by knocking over convenience stores.

Domainers don't just face exposure form registering famous/ registered/ distinctive marks. I was sued for registering a non-famous and un-registered acronym, AKA: a claimed common law trademark. The fiasco cost me $50,000.

The bottom line is that domainers are ALWAYS the bad guy in the eye of the court and the arbitrators, and domainers are ALWAYS out gunned and out funded by corporate TM owners.

Is it worth risking your business? Your house? Your reputation?

NO.

[DaddyHalbucks]

For example:

apple.computer.us.reg
apple.tobacco.us.reg

Tell the difference?

Apple Computers could still use apple.com - just directed to apple.computer.us.reg as certification.
+++++++++++++

What are you smokin'?

Even if you weren't wrong about the legal principle of concurrent use --that is the most cumbersome ridiculous thing I have ever heard!

[hiOsilver]

Originally posted by jberryhill
"I have had to let 100's of names be takin by other people and they are cashing in BIG time."

Duo cum faciunt idem, non est idem.

Nosce te ipsum.

John,

How about a translation for those of us who do not know Latin?

[jberryhill]

Oh... okay...

Duo cum faciunt idem, non est idem translates to "wenn zwei dasselbe tun, so ist es nicht dasselbe" or less broadly, "wenn zwei Menschen dasselbe tun, so darf es der eine ungestraft tun, der andere nicht."

Nosce te ipsum translates to "Erkenne Dich selbst".

[Source]

Originally posted by jberryhill
Oh... okay...

Duo cum faciunt idem, non est idem translates to "wenn zwei dasselbe tun, so ist es nicht dasselbe" or less broadly, "wenn zwei Menschen dasselbe tun, so darf es der eine ungestraft tun, der andere nicht."

Nosce te ipsum translates to "Erkenne Dich selbst".

How about English and French?

[hiOsilver]

John,

Danke sehr. We all know that you are a very clever and erudite fellow, not to mention a very astute intellectual property attorney. For those who are rusty on their German (as am I), there is always Google Language Tools. So, with a bit of Google help, my loose translation is:

What works for one person, might get the other into trouble.

Know thyself.

[Garry Anderson]

I am most concerned about John.

I already knew about all the trademark issues of which he spoke, about prior use etc.

I already knew that "...in the case of a prior unregistered user, then the prior unregistered user may continue use, exclusively, within the geographic area constituting the user's market at the time registration was obtained."

The result being that there is only ONE REGISTERED TRADEMARK TO PREVENT CONFUSION.

The only significant thing I learnt new - was that US passed a law, 15 USC 1052(d) allowing USPTO to screw up.

John does not see absolutely anything wrong in giving two or more US businesses the same registered trademark for similar products or services.

Indeed - he even has the nerve to justify it with - saying you can get a French business with same mark as German business selling similar products. Well yes - obviously, because these are separate countries.

The fact is one he fails to address - anybody seeing a product with US registered trademark cannot trust that it comes from any one specific supplier.

There could be more than one product with the same US registered mark - it makes a mockery of the whole trademark system.

In fact - how can any person trust any US products (inside or outside the country) - if they may not be the registered trademark they believe them to be?

e.g. US tortillas ‘LA TAPATIA’®

DCCB> Even if you weren't wrong about the legal principle of concurrent use --that is the most cumbersome ridiculous thing I have ever heard!

This is in addition to present system - it adds functionality.

This gives a system of authentication and directory services to the Internet.

Both sadly lacking.

There are registered trademarks for apple in computer and tobacco businesses.

Typing apple..us.reg into directory services would give:

apple.computer.us.reg
apple.tobacco.us.reg

As stated this is in addition to apple.com etc.

It is purely logical common-sense - how is it cumbersome or ridiculous?

[jberryhill]

"obviously, because these are separate countries"

And the U.S. is a federal system of sovereign states. So? You are fine with one name resolving to two different products in France and Germany. You fail to understand that we are fine with one name resolving to two different products in Maine and Hawaii. In fact, given the geographic and cultural remoteness of Maine and Hawaii, the expectation that people would, or should, view distinctiveness in all trademarks the same way in those two places is ridiculous.

Then we have places in the U.S. such as Puerto Rico, where the primary language is not English. I would imagine there are all sorts of trademarks known to consumers in Puerto Rico which are very different from those in, say, North Dakota.

For his next trick, Garry will explain how differing European national registrations are to be worked out in the European Community registration system.

"In fact - how can any person trust any US products (inside or outside the country) - if they may not be the registered trademark they believe them to be?"

Because each of the concurrent issued registrations is limited to a defined geographic region within the US. It depends on where you bought them. Just as it does in the EC.

Consumer perception of distinctiveness does not map conveniently to national boundaries, just as trademarks do not map conveninently to domain names, no matter how hard you want them to. There is no way that you are going to force the people of South Carolina to consider "USC" to mean "University of Southern California", and there is no way that you are going to force the people of California to think of the "University of South Carolina".

We do not all live on a small European archipelago.

[Garry Anderson]

John, you seem a honourable man. I refuse to believe you have the low intelligence and mindset of the monkeys that made this moronic Zip code lottery trademark law.

"Archipelago"?

Nice try.

Your country is more vacuous than the UK - we have more people per square mile.

You cannot play the, "my one is bigger than yours" scam. Do you have any idea how many millions live here in UK?

Stereotypical - but before we get into number of businesses, GNP etc. let us continue to address your dissembling.

The UK also incorporates a country with its own language - that of Wales.

Trademark systems are national - not regional - for very obvious reason - see if you can figure what it is.

To help (not that you need it), you say, "It depends on where you bought them".

1. They must have a ban on resellers in the US then.

2. The consumer of product is not just the buyer - it is also the end user.

3. Would you check which part of the UK a product came from before you trust the UK registered trademark is the one you want?

You even try muddy water with EC. It is totally none comparable - these national registered trademark systems were already in place.

In addition - you completely ignore the fact that nothing prevents these businesses (and universities) from continuing with unregistered trademark - exactly like in other countries. Duh - the people of South Carolina know that "USC" means "University of South Carolina".

You still have not disproved this statement of fact
**********
EVERYBODY expects when seeing a particular product or service, registered in their own country, that it comes from one basic supplier - that it is unique.

Except in America - where they changed the law to pervert this root basic concept.
**********

What is it about - "There could be more than one product with the same US registered mark - it makes a mockery of the whole trademark system" - that you do not understand?

Do you really think a jury of twelve objective and honest people could not see that the integrity of ANY countries registered trademark rests upon them being unique?

[jberryhill]

"You still have not disproved this statement of fact

EVERYBODY expects [...]"

Not having asked EVERYBODY, I wouldn't know. Obviously, disproving that "statement of fact" requires a single counterexample.

Volunteers?

[LewR]

EVERYBODY expects when seeing a particular product or service, registered in their own country, that it comes from one basic supplier - that it is unique.
-----------------------------

Okay, I admit to being stupid - so what is this statement saying? That everytime I see beans and pork in a can (or pork and beans as the court said is generic) it should be from only the Cambells company??? NOT...