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3/22/06

Intellectual Property Owners Stifle Innovation

I am 100% supportive of the right to file a trademark, patent, or servicemark. I want to get that out of the way first. America was built on the greatness of it's inventors and innovators and they have a right to be protected.

That being said, the US Patent and Trademark Office has gone completely off their rocker. Corporations have muscled their way in and began to make trademarks and patents a total joke.

Let's start with this article

So they OWN the words Super Hero? Two ordinary words. They have been allowed by the USPTO to believe they actually OWN that string of letters.

First of all what is a trademark? According to USPTO.gov; (Don't type it into the browser without the www because our government isn't smart enough to hire webmasters who know how to make the domain name work without the www)

"A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name."

Note that it says to be used and not owned. Some may think there is no difference there. Ah, but let's take a closer look.

When filing a Trademark, you must choose a "CLASS", like Medical Apparatus, Firearms, Jewelry, etc. Therefore, you do NOT OWN the string of letters or words, you have the right to USE them when doing business in your particular category, while someone else can use the same string of letters to file a trademark in another CLASS.

In addition to that, federal registration is not required to establish rights in a trademark. Common law rights arise from actual use of a mark. Generally, the first to either use a mark in commerce or file an intent to use application with the Patent and Trademark Office has the ultimate right to use and registration. However, there are many benefits of federal trademark registration.

This is directly relative to registering domain names. ICANN (Internet Corporation for Assigned Name and Numbers) turned over domain name disputes to WIPO (World Intellectual Property Organization, with a very loose definition of the word Intellectual).

In many cases, a person has filed a domain name, then long after the filing of the domain name, someone else registered a trademark for the same string of letters. But remember the trademark registrant had to choose a specific class for their mark. They did not register OWNERSHIP of a string of letters.

However, in 80% of these cases, WIPO has found that the trademark registrant had the right to take the domain name away from the person who registered the domain name long before the trademark was filed.

In addition to that, nowhere in your trademark application are you guaranteed a domain name that matches your trademark.

The domain name is NOT in a particular class, therefore it does not match your trademark, even if it is the exact same string of letters.

Registering a domain name is EXACTLY like first use or intent to use. The domain name registrant, if it was registered before the mark, has MORE rights than the trademark holder, not less.

ICANN and WIPO have consistently misapplied trademark law to suit the big corporations. Many large corporations missed the boat in the first rounds of domain name registration when many of the good names were registered.

They didn't bother with filing good generic domain names nor even their own company names because they thought the Internet was a passing fad.

As soon as they became aware of the enormous potential of the Internet and found that many of the good domain names were taken, they put their lawyers to work to try to steal good domain names from others who had previous rights to the domain names due to the first come first serve policy of domain name registration.

Reverse Domain Name Hijacking has been occurring for a long time now. The big corporations get all the publicity when a Cybersquatter registers a domain name that matches their trademark. And the publication of those stories makes them sound like poor helpless victims.

What does not get reported is the fact they have teams of lawyers searching for domain names that are owned by individuals that they want for their own. When they find one they want, they send threatening letters to the individual, threatening expensive lawsuits, etc. etc.

In many cases the individual is scared, does not understand, and simply turns over their domain name to the big bad corporation. That is their game. Domain name acquisition through intimidation.

Why doesn't this get published to the public more? Because individuals don't buy advertising, corporations do. The media slants these stories in favor of those who pay it advertising money.

People need to understand trademark law and it's relationship to domain names so they can protect themselves. Do not just turn your domain name over to someone who threatens you. If you need help with that type of letter, email me at missingkids@gmail.com and I will do everything I can to help explain what your rights are.

Chris McElroy has bought and sold more than 500 domain names, has been a member of the DNSO (Domain Name Supporting Organization) working groups, a member the General Assembly of individual users under ICANN, and is currently on mailing lists to advise and monitor the actions of the GNSO (Generic Names Supporting Organization). He continues to fight for the rights of individual users of the Internet and domain name holders. His website, http://www.newsandmediablog.com has more articles for you to read.

More things that just piss me off

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