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It was reported recently that U.N. World Intellectual Property Organization ruled that Time Warner, as the possessor of the Harry Potter marketing rights, is the true owner of 107 Internet domain names that had previously been registered by other parties for online use. With this ruling, sites like HarryPotterinHollywood.com and HarryPotterFilm.org will be transferred to Time Warner's control. This decision is bound to renew the demand for a universal rethinking on the relationship between "Trade Marks" and "Domain Names". When the system of Internet originated, the domain name system emerged as a "Host Identification" system where the IP address in the data base was matched with an easily rememberable English name. The registrations at that time were controlled by a single organisation namely the InterNic which adopted the first come first served principle. At that time the Internet world was so disciplined that the registrars didn't try to manipulate the system even for whitehouse.com or Nasa.com or uspto.com or even internic.com. These sites didnot belong to the natural owners of the names in the real world and therefore were "Confusingly similar". However, in a commitment to the principle, and with a spirit of tolerance and co-existence, they were allowed to run with a suitable "Disclaimer". But the world of Internet has since changed. With the entry of "Commercial Interests", the spirit of co-existence has been replaced by a "Bitter Rivalry". Today, every person is hunting the domain name space to find if there are any other sites which can some how be called "Confusingly similar" and if it is also popular, try to hoist a "Trade Mark case" to snatch the domain name. The policies of the WIPO and the USPTO in this regard have made a mockery of the ICANN and its domain naming system. USPTO has as a part of its guidelines in registering domain names as "Trade Marks", ignores both the prefix "http://www." as well as the "TLD" in arriving at the "Registerable Trademark". This is of course consistent with the WIPO stand that anything registered as a trademark provides a right over not only the TLD extensions but also on the variations as indicated in the Henry Potter case and also as evidenced in its earlier rulings in the Yahoo related cases. It is unfortunate that the decision makers have not realised the practical problems in carrying on with this interpretation. Holding two sites similar only because of the "domain name" without considering the content and style of the site is like treating two individuals with the same name as "Confusingly similar". If you don't want a second potter.com or madonnaindia.com to exist along with the live or legendary celebrity names, can we allow any body in India to name themselves as Indira, Amitabh or Sachin?. In case we allow them to use such a name, can we then bar them from having a website www.indira.com or www.amitabh.com or www.sachin.com? Take the case of Henry Potter sites. Not all of them qualify as "Cyber Squatters". They are not running a website to prevent a legitimate person from using the name nor they are offering to sell them for profit. Today just as many domain name owners who have a web site idea and are yet to perhaps initiate action, are derogatory called Cyber Squatters, there are many Trademark owners who can be called "Reverse Domain Name Hijackers". Just because they hold a registered trademark in one classification in one geographical area, they are claiming right over the Cyber world. This is not a fair dealing. We need to therefore distinguish from "Cyber Squatting" and "Advance Domain Name Registrations" as well as between "Trade mark Owners" and "Domain Name owners of the Trade Mark related words". THe USPTO has refused to consider the TLD s as part of the name since they feel that the TLD is not a "Name Distinguisher". This is a false interpretation of the concept. How can we say that whitehouse.com and whitehouse.gov are not distinguished? It is like saying that Vijay Shah and Vijay Menon are not distinguishable. Similarly just as Vijayan and Vijay are different, sites such as rediff.com and radiff.com should be considered different and distinguishable. If WIPO doctrine is to be honoured, a single trademark such as "Potter" can provide rights over thousands of "Potter related domain Names" to the owner of the trade mark without either registration or prior usage. More over, this gives an unfair right to the trademark owner to claim his domain name right any time after the other domain name gains popularity and economic value. We are today only seeing cases involving celebrity trade marks such as Tatas or Fords. We should remember that along with a few Tatas and Fords there are lakhs of trade marks which are not known to us but which are as legitimate as the trade mark of Tata or Ford. If any genuine Cyber entrepreneur starts a web site and it becomes popular, there is no guarantee that he will receive a notice from a trade mark owner in Timbuktu saying that he has a right on the domain name. This will lead to harassment of honest domain name owners who have not used the trade mark to promote their web site. In the Potter case as well as in Rediff Vs Radiff case and many such
cases, we are therefore sowing the seeds of an unmanageable chaos that
can make the Domain Name space a real jungle of
Naavi
Is there a solution to this?. Yes there is. naavi.org is shortly launching a service that will be loved by all genuine domain name owners who are today living in the shadow of the fear- the fear of an unknown Trade Mark Owners attack. Watch out for the launch of the service. Contact naavi for availing the service from day one.. It would be free of charge for some time now. It is available only for domain name owners and will require a small html code to be inserted on the home page. Naavi. |
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