People who register TM names and TM typos are stealing from us

[Gerry]

Family Practitioners and Doctors in general are reporting an increase in a new type of sports injury.

http://content.nejm.org/cgi/content/short/356/23/2431

Acute Wiiitis
A healthy 29-year-old medical resident awoke one Sunday morning with intense pain in the right shoulder. He did not recall any recent injuries or trauma and had not participated in any sports or physical exercise recently. He consulted a rheumatology colleague. The Patte's test was positive, consistent with acute tendonitis isolated to the right infraspinatus.

After further review of his activities during the previous 24 hours, the patient recalled that he had bought a new Nintendo Wii (pronounced "wee") video-game system and had spent several hours playing the tennis video game.

Now which TM was just violated and why is this not such a big issue?

If I'm Nintendo, I am pissed that someone is reporting that my bread and butter commodity is now being held up in bad press as accountablility for causing injury.

 

[Raider]

Start with the basics. Do you know what a TM is? Numerous and even sometimes hundreds of TM's can be issued at the same time. It is a trade mark, a mark, design, logo etc defining or identifying a brand.

So TM is not always the same thing. If I want to sell granny smith Apples and want to reg BakingApple.com, does that mean I am infringing on APPLE computer?

I would think not, but if your linking, displaying or advertising Apple computer products or a competing product on your bakingapple website, Yes you are....

The way I understand it, If you register a domain using any TLD of let's say "Grandtheftauto" and your site contains content of how to protect yourself against car theft, and does not contain anything related to the video game Grand Theft Auto, that is not infringing on that video companies TM, even though you may be receiving traffic from it, the visitor is not directed to a similar or competing product.

 

[Theo]

Doc, since you brought up the Nintendo issue, here's a little story about how free today's media are compared to these of the past.

Almost 20 years ago, as a junior writer at a gamer's magazine, I conducted a report about colorful videogames with repeating patterns and their effects to the young player's vision. The article mentioned documented instances of epileptic seizures that affected a number of players exposed to hours of repetitive gameplay.

I did my duty as a reporter. One thing I didn't know, was that Nintendo was an active sponsor of the magazine. So following the publication of the magazine, they called the chief editor and complained. I was told I had to issue an apology and a correction. Despite my young age, I chose to quit instead.

Just one more of my many stories to share

 

[Gerry]

Just one more of my stories to share

After knowing you for the short amount of time I have, I can not see you putting your tail between your legs and apologizing for anything that you had committed yourself to.

And, if I am not mistaken, years later someone else reported the same results and got the credit.

 

[Theo]

Well, I simply reported the scientific results. I didn't conduct the lab tests - or I might have gotten some page in Science magazine

On the subject of TM's I think that it's good to have a non-linear traffic source. Google makes millions daily from advertisers that result from searches related - but not exactly identical - to what the visitor searched for.

Perhaps, that's where Parked's multi-click feature kicks in well

 

[Duckinla]

Just think for a minute how far the industry would be set back if you took away the millions of dollars made from typo-squatting. How many registrations would not happen next year? How many people would not have money to bid on domain names? How much less development would be done by companies like Google and Yahoo. It's kind of like the tobbaco industry. Take it away, and a whole lot of cash and jobs go away with it. Things will be impacted that you would never even think about. I wonder how much Google stock would fall without typo revenue. Since the stock price is predicated on growth, Probably a good 50%, I would think.

 

[TheLegendaryJP]

Just think for a minute how far the industry would be set back if you took away the millions of dollars made from typo-squatting. How many registrations would not happen next year? How many people would not have money to bid on domain names? How much less development would be done by companies like Google and Yahoo. It's kind of like the tobbaco industry. Take it away, and a whole lot of cash and jobs go away with it. Things will be impacted that you would never even think about. I wonder how much Google stock would fall without typo revenue. Since the stock price is predicated on growth, Probably a good 50%, I would think.

This is exactly why I support the production and sale of guns, knives and duct tape. If not allowed, murders would go on the decrease and police men would lose jobs, attorneys etc etc etc.

 

[Gerry]

http://www.madlypopn.com/images/uploads/111_large.jpg

 

[Focus]

Did I hear guns? k:

 

[katherine]

I think trying to clean up the rampant illegalities is the best thing he could do for the industry. Lots of industries self-regulate or often ask for legislation and enforcement to legitimize them. Unfortunately, the domain industry isn't one of them.

Exactly.

And since the domain industry has been unable to self-regulate so far I would not be surprised to see some kind of response in the form of unwanted legislation in the near future, that may hurt us all. The NY act may be just the beginning.
Do not expect any kind of leadership in this industry either. Even Mr Schartz himself owns blatant TM names. This is coming from the very same people who are saying that cybersquatting is despicable and we should distance ourselves from those who engage in it.

IMO there are no ifs or buts. Regardless of what we may think there are laws against cybersquatting and the laws prevail. Even when you have low or no ethics you still need to stay within the boundaries of the law. That's the least you could do.

 

[petrosc]

But I can see the day when there is a split in generic domain holders on one side and click fraud/Tm holders on the other

When that day comes, all domainers will stand somewhere in the middle wondering which side to go to

 

[Theo]

Betty Little Old Hag .com is available.

 

[Gerry]

Exactly.

Not to argue your point, but go back to post #41.

Why is this not TM infringement? Or is it? Wii did not exist until the term was coined by Nintendo.

TM infringement is TM infringement in any arena, whether it is the domain industry or medical industry.

Many would argue there is no difference while others would argue that this is a causal/effect.

Domainers making money off of wii domains. Doctors making money off of patients suffering from an affliction due to the wii.

So, TM infringement is TM infringement. Domainers are not protected and doctors should not be protected.

Should Nintendo now sue the New England Journal of Medicine?

I also used two earlier examples. Yahooisms I am told can not be parked due to TM violations. Yet that in itself is a dictionary word and a southern phrase. BakingApple.com contains the word APPLE. (note: not one I own; made it up as an example).

What I have experienced are real life examples, alleged TM infractions, and even C&D's, which are totally pure bullshit.

I got a C&D from eBay for the domain MaineBays.com. This was to be an online photo journal of a planned kayaking trip along the coast and islands of Maine. Why did I get such a letter? Because that domain contained the 4 letter sequence E B A Y. Their legal department tried to force me to surrender, abandon, or cancel the domain. I politely informed them that they did not coin the 4 letter sequence of the term ebay, if that was their defense. I also informed them that I would seek out the descendants the namesake of Chesapeake Bay, the botanist who name Rose Bay, and the heirs of Otis Redding of Sitting on the Dock of the Bay for ebay infringing on the rights of these people. eBay does not own the alphabet nor the dictionary. eBay backed off.

This is a point I am trying to make...where does it begin and where does it end? Apple, Yahoo, Bay...all dictionary words. All words long in existence and in common usage long before those companies existed.

Sure, we can say it is "how" it is used. But no one is looking at that, per se. It is as if it is carte blanch that if these domains contain these letters or these words, then it is a violation. No one nor any one person is personally reviewing these domains. They are all being swept up in this passion to rid the internet of this poison!

God forbid if I wanted to start a tribute site to Johnny Appleseed or a history of Soft Drinks in America and had old footage of early Mountain Dew commercials.

---------------------------------
Off to bed. Long night at work.

I am sure this debate will be raging on. Don't they all.

 

[katherine]

Not to argue your point, but go back to post #41.

Why is this not TM infringement? Or is it? Wii did not exist until the term was coined by Nintendo.

TM infringement is TM infringement in any arena, whether it is the domain industry or medical industry.

Many would argue there is no difference while others would argue that this is a causal/effect.
...

I realize that TM issues are not always black and white and some names are borderline or otherwise debatable in both ways. In such cases usage can make the difference between good faith or bad faith.
The fact remains that domains are still being sold while they constitute obvious and blatant TM infringements, no questions about it.

Sometimes I just get the feeling that these discussions aim to legitimize behaviors that are nonetheless hard to defend if you want to be taken seriously in the outside world.
There are two aspects to be considered in this: the ethical part (where you personally draw the line) and the legal part (when you cross the line and find yourself to be in clear violation of existing laws and regulations).
We can discuss about ethics, but there is not ample room for discussion when you step outside the boundaries of the law.
So yes I think we are too complacent.

 

[Biggie]

I know I will get a lot of grief from this but it is true. people who register TM/typos are hurting every legitimate domainer,
Ad dollars would be much more if advertisers actually got people from parked sites who were searching for there product 100 percent of the time. Heres an example Joesmo types in hbsc.com instead of hsbc.com and goes to a parked page with hsbc link on top for banking. HSBC paid 5 dollars for every visitor that google sends them only joesmo already has an account with hsbc and just wants to check his balance. I am sure advertisers see that there traffic is converting somewhat because of the legitimate parked sites where people are actually looking for a mortage or whatever. But now we see advertisers opting out of parking traffic for this reason. I am sure this happens millions of times each day.

the nature of man is to take

the nature of businesses is to take, steal, use "by any means necessary", we are a "get our hands on that technology" driven society.

almost every major tech company has been or will be involved some type of "infringement" case.

From MS to iRobot
from Ap to Verisign
from apple to apple and all in between

the lastest squabble i read is:


this robotics company won 280m contract from US Army to build 3,000robots that can detect bombs and IED's in Iraq and Afganistan. however, the order can't be shipped, because the CEO of the company, used to work for the makers of the robot that cleans floors. They say he stole the technology to start his own company.

source:
http://www.suntimes.com/business/599993,CST-FIN-irobot12.article

another squabble:

AP sues Moreover and parent Verisign for re-publishing it's news briefs.
source:
http://www.radioink.com/HeadlineEntry.asp?hid=139525&pt=todaysnews

the most important thing in our industry is that...

we are being divided

and by whom

and for what purpose?

 

[LizzeyDripping]

Hi - in answer to Doc Dom at #41.

It is not trade mark infringement because it is simply referring to a product in the marketplace and the fact that someone using a Wii got strain injuries. Saying "I saw an Apple computer today" doesn't constitute a trade mark infringement either.

BUT registering the domain name applecomputertoday.com and parking it to make revenue can be seen as profiting from someone else's hard work in building a reputation in a brand. So that may be trade mark infringement.

The same rules which apply to unfairly profiting from someone else's hard work in building up a reputation for product excellence apply throughout the world of business and commerce and not just to domaining and the internet.

 

[Gerry]

Hi - in answer to Doc Dom at #41.

It is not trade mark infringement because it is simply referring to a product in the marketplace and the fact that someone using a Wii got strain injuries.

Referring to a product in a bad light is just as serious, if not more serious, than TM infringement. This is where scientific data and studies better support the claim that a product has caused an injury. Like I mentioned, if I am Nintendo, I am going to be super pissed that this made a prestigious medical journal.

Already there are 43,700 Google results for wiiitis from an article posted this past July.

So, next point...is WiiItis.com a TM infringement? It is now a medical condition. See the snowball effect? A claim that the NEJM did not infringe simply by referring to a product has now given a name to an injury that has become similar to tennis elbow, a now generic term and condition. But WiiItis is based on a patented, registered TM and copyrighted product.

Where does the TM issue begin, end, and in a gray area?

The fact remains that domains are still being sold while they constitute obvious and blatant TM infringements, no questions about it.

So who do we blame?

The registrars all have you agree to TOS when signing up. Registering intellectual property and TM is one part of their prohibited items.

Yet they allow you to do it.

The same is true when you agree to transfer a domain...you agree that it is free and clear. But it is not.

Then the domain expires. Now registrars have become their own drop catchers.

I just did a search on Pool for iPod... Exact Matches (9) Similar Matches (146). That is just todays numbers.

On TDNAM...Search returned 814 listings.

So the registrars and ICANN and drop catchers become their own biggest customer yet they claim total immunity from liable when someone cries foul.

Don't depend on the industry to enforce its own rules when it is raking in perhaps billions of dollars on registering bad faith names, reselling them when they expire, and auctioning some off for thousands of dollars.

Go to TDNAM right now and look what is the most active auction with 22 bids and 8 days left and already at $1,505.00.

So who is to blame for this fiasco? TDNAM/GoDaddy knows perfectly well what it is doing. And as Dave Zan pointed out in a previous topic, no registrar as of yet has been held liable in a court of law for such actions of allowing such a domain to be registered or even sold let alone resold.

 

[Dave Zan]

And as Dave Zan pointed out in a previous topic, no registrar as of yet has been held liable in a court of law for such actions of allowing such a domain to be registered or even sold let alone resold.

Speaking of which, I finally got a copy of the "last" decision regarding Size,
thanks to a generous member:

http://davezan.com/sizevsnsi.txt

For these reasons, the Court finds that the complaint fails to allege a cause
of action for contributory trademark infringement against NSI. Therefore, Count
VII will be dismissed.

Of course, it hasn't stopped others from suing them or even other registrars
for contributory trademark infringement. But I haven't seen one triumph any
time lately, either.

 

[Poker]

Great post Biggie.

 

[Gerry]

Speaking of which, I finally got a copy of the "last" decision regarding Size,
thanks to a generous member:

http://davezan.com/sizevsnsi.txt



Of course, it hasn't stopped others from suing them or even other registrars
for contributory trademark infringement. But I haven't seen one triumph any
time lately, either.

Thank you, Dave. You came through as you have in the past.