[PC-NCSG] revised draft NCSG statement on staff's strawman proposal

[Norbert Klein]

On 7 1.2013 15:08, konstantinos at komaitis.org wrote:
> Yes - this is a great statement. Perhaps it would be valuable to include a bit on nominative use (see Toyota Motor Sales, U.S.A., Inc. v. Farzad Tabari, et al. No. 07-55344 (9th Cir. July 8, 2010), Judge Kozinski gave a great analysis, I had blogged about it here: http://www.komaitis.org/1/post/2010/07/the-lessons-the-trademark-community-should-learn-from-judge-kozinskis-ruling-on-nominative-use.html). Also, on the issue of the GPML that is being sneaked in as blocking, I have written a bit on my book as to how it changes the face of trademark law - both in terms of territoriality as Mary suggests as well as on the basis of its philosophical foundations.
>
> Hope this helps.
>
> KK
>
Thanks, Konstantinos, it really does.

for sharing and interpreting the US Ninth Circuit ruling by Judge Kozinski.
As a person not having been professionally educated in law, I often fail 
to understand some arguments presented in legal language. Maybe a 
similar situation prevents also others and the public from more clearly 
resisting the trend to increase trademark protection. But the text you 
refer to is so clear ? common sense and legal at the same time.
That is why I appreciate your presentation, saying:

    ?The ICANN community should really pay attention to this ruling and
    should learn from the excellent reasoning of Judge Kozinski. This
    decision is really a victory for many legitimate domain name holders
    who lose their domain names...?


I even want to quote here some more in full and highlight from what is 
under the URL you gave, in the hope that we all feel encouraged to state 
again what is important ? and what is legal, according to the ruling by 
the Judge Kozinski:

    ?Further, the Ninth Circuit upheld the importance of the First
    Amendment in the context of trademark law stating that ?Speakers are
    under no obligation to provide a disclaimer as a condition for
    engaging in truthful, non-misleading speech?. Judge Kozinski, even
    asserted that thousands of sites make ?nominative use? and, contrary
    to the way consumers are portrayed under ICANN?s trademark policies,
    in reality consumers are both sophisticated and not easily mislead.
    On the other hand, a number of sites make nominative use of
    trademarks in their domains but are not sponsored or endorsed by the
    trademark holder: You can preen about your Mercedes at
    mercedesforum.com and mercedestalk.net, read the latest about your
    double-skim-no-whip latte at starbucksgossip.com and find out what
    goodies the world?s greatest electronics store has on sale this week
    at fryselectronics-ads.com. Consumers who use the internet for
    shopping are generally quite sophisticated about such matters and
    won?t be fooled into thinking that the prestigious German car
    manufacturer sells boots at mercedesboots.com, or homes at
    mercedeshomes.com, or that comcastsucks.org is sponsored or endorsed
    by the TV cable company just because the string of letters making up
    its trademark appears in the domain?.?

    ?It is the wholesale prohibition of nominative use in domain names
    that would be unfair. It would be unfair to merchants seeking to
    communicate the nature of the service or product offered at their
    sites. And it would be unfair to consumers, who would be deprived of
    an increasingly important means of receiving such information. As
    noted, this would have serious First Amendment implications. The
    only winners would be companies like Toyota, which would acquire
    greater control over the markets for goods and services related to
    their trademarked brands, to the detriment of competition and
    consumers.?

Thanks, of course, also to all others who have contributed to the 
response to the Strawman Proposal.


Norbert Klein
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.ipjustice.org/pipermail/pc-ncsg/attachments/20130107/be9e8502/attachment.html>