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Wednesday, 8 February 2006


...when you visit

1 comment:

Andrea Glorioso said...

Although I didn't carefully analyze all the claims made by the author
(I have the suspicion he didn't consider carefully enough that art.
4(a) UDRP requires three distinct preconditions to be satisfied *at
the same time* for a proceeding to even start) I think the points that
are being raised in a somewhat excessive language have some merit.

In particular, I think that basic incompatibility between the
historical and technical "raison d'etre" of the Domain Name System and
the corresponding elements of trademark laws around the world should
not be underevaluated; plus, I have the impression (not corroborated
by empirical data, I admit) that as of today most people access
websites through third parties' services, i.e. search engines, and
they couldn't really care less about the actual Uniform Resource
Locator. Also, and again without any empirical data backing my
claims, I suspect that the pattern of usage of today's web interfaces
(mostly browsers) follow a "search engine / bookmark / clik again on
the bookmark" cycle, therefore making the reservation of - and all the
fuss about - a specific domain name rather useless.

What is really relevant, in my humble opinion, is making sure that the
goals that the trademark system wishes to preserve are maintained on
the Internet; whether this should be done by pushing a square tool
through a round hole, or rather by using other legal tools available
(`passing of' doctrine in anglosaxon systems, the general defense
available with unfair competition law in most countries including
Italy) is an "open question" (love this meme).

After all, what is really relevant: a small sequence of characters, or
the actual content of a website?

All in all, I think the proposal of Mr. "" to create a
specific top-level domain for trademarks should be considered with
more attention, although the basic point remains - if we accept that a
domain name serves the same function of a trademark, then it is
difficult to accept that the core tm-functional element of the domain
(which is not the top level domain, generic by nature, but usually the
second level domain, as in *apple*.com) would elicit its effects on
the average consumer only in a specific top-level domain and not in
all others.

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