[gnso-rpm-wg] Recommendation for Questions #7 and #16 (Design Mark and Appropriate Balance)

[Rebecca Tushnet]

By that logic the mandate not to expand on trademark rights would have
been pointless because no activity in domain name space could ever
have expanded trademark rights.  Call it a right, call it a privilege,
call it an alien from Xenon if you like, but ICANN did not want
trademark owners to be able to assert control over domain names in
excess of what underlying trademark law would have allowed.  Under the
"nothing in domain names can expand trademark rights because they're
never exclusive" logic, was the ICANN direction completely
meaningless, or did it have some meaning?  (Trademark rights, of
course, are never "exclusive" either, which is why we can use any
examples we want in this discussion.)
Rebecca Tushnet
Georgetown Law
703 593 6759


On Wed, Apr 26, 2017 at 1:41 PM, Silver, Bradley via gnso-rpm-wg
<gnso-rpm-wg at icann.org> wrote:
> Jeremy - the TMCH does not allow exclusive rights in domains.  Having a mark in the TMCH affords nothing close an exclusive right.  That's a basic truth which shouldn’t be ignored.
>
> -----Original Message-----
> From: gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Jeremy Malcolm
> Sent: Wednesday, April 26, 2017 1:32 PM
> To: gnso-rpm-wg at icann.org
> Subject: Re: [gnso-rpm-wg] Recommendation for Questions #7 and #16 (Design Mark and Appropriate Balance)
>
> On 26/4/17 9:00 am, Colin O'Brien wrote:
>> Nice try Rebecca but I'm not attempting to overturn the apple cart.  If you have actual examples of problems then provide them otherwise this is an indulgent  academic exercise.
>
> The fact that the TMCH is allowing exclusive rights in domains that go beyond the equivalent rights in domestic trademark law is itself a problem if we accept that the TMCH was meant to track trademark law.
>
> --
> Jeremy Malcolm
> Senior Global Policy Analyst
> Electronic Frontier Foundation
> https://eff.org
> jmalcolm at eff.org
>
> Tel: 415.436.9333 ext 161
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> :: Defending Your Rights in the Digital World ::
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