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

[Robin Gross]

Thanks all for the comments and support.  I've added language about  
the territoriality point that Konstantinos and Mary make and attached  
is the final draft, which I'll now submit to the comment forum.  The  
trademark lobby is getting comments in now too...

Thanks again for all the suggestions to this text.  The comment  
period closes tomorrow, but then the reply comment period will be  
open until 5 Feb.

Best,
Robin

?


On Jan 7, 2013, at 1:10 AM, Norbert Klein wrote:

> 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
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> PC-NCSG at ipjustice.org
> http://mailman.ipjustice.org/listinfo/pc-ncsg




IP JUSTICE
Robin Gross, Executive Director
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p: +1-415-553-6261    f: +1-415-462-6451
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