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  1. #46
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    Lawyers are known to disagree. It keeps them busy.

    Do a little research on famous mark litigation (or represent a party in such litigation) and you will often, but not always, find that copyright and trademark claims are filed in the same legal action (lawsuit) arising out of the same core of operative facts. The protections vary, from registered marks, to common law marks to you-aint-allow-to-copyrights.

    Still, no one has answered the question: If you engage in a pattern of offering for sale goods that are obviously "stolen" (it ain't Mr. Eisner offering the Disney domains for sale) - obvious famous marks - are you immune from a claims of facilitating illegal activity?

    The DMCA protections - roughly stated - protect ISPs/etc - from claims of infringement of proprety rights "in the first instance" - when the ISP's system - read that "message board" - allows materials to be posted automatically, without review. HOWEVER, upon notice and request for removal, if the allegedly violative material remains posted, the ISP/BB operator loses the immunity.

    http://www.ncsu.edu/copyright/DMCA.html

    I'll attempt to simplify the proposition that I stated regarding the DMCA since it appears you are missing the implication.

    If posting famous marks for sale invoked only issues of potential copyright infringement you might enjoy some immunity from a claim.

    There is NO LAW - like the DMCA - that offers immunity to a message board operator for facilitating the unlawful trade of famous marks.

    That's the negative implication the DMCA and of my comments regading the DMCA.

    DMCA = some protection but potentially some exposure.

    Outside DMCA = no statutory protection, specifically for facilitating the trafficking of ill gotten goods.

    You need to understand that for at some point one law firm could likely bring down all forums that facilitate the trade of famous marks. How? Well, since people trading in other people's property rights will often post the same domains at several or all leading domain forums, it is likely that one law firm with the right client will be able to file a claim against all the boards at the same time. It would likely start as a negative injunction (thou shall not allow for the trafficking) and could well end with a judgment for money damages.

    Just how many instances of "famous marks for sale here" do you think it would take a judge or a jury to get their minds around the notion that the forum was facilitating the trafficking of what amounts to "stolen goods"? Just look at some of the domain names and typo names that are offered at many forums. Will the jury work out the issue after the 10th, 50th or 500th instance of a forum enabling someone to offer Pepsi or Coke or BradPitt or Disney or Dinsey for sale?

    At some point someone has to say you cannot START with the assumption that the mere ability to register a domain containing a famous marks gives you any RIGHT to do so or to use the domain for any purpose - without prior advice and consent.

    I just don't see the 1st amendment as protection for the knowing trafficking of ill-gotten goods.

    DomainState, DNForum, WebHostingTalk - none are EBay or even close - and even if they were there would be a line drawn that even EBay couldn't cross. One of Ebays "factual defenses" is that "we're so big we can moderate/supervise all of this activity". That doesn't sound like DS. Most domain forums are actively moderated, with the mods posting in many threads.

    My suggestion is that someone wake up and smell the coffee. This practice will not stand a legal challenge. No law will protect a forum that repeatedly facilitates the sale of other people's property.

    Just think of it as the "stolen cars for sale cheap" forum. If you knew the cars were stolen how long do you think you would be in business?

    You can - if that's your choice - ignore the fact that people are listing what are plainly other people's property. Heck, if that other person's property didn't have value do you think John Doe would be offering it for sale?

    Here's the final question: Where is John Doe going to be when the lawsuit papers are being served? Sitting in your office offering to pay for your legal defense and damages claim?

    Yeah.

    You think the ACLU will jump in to defend your right to facilitate the sale of a Disney domain for the 50th time?

    Think again.

    Just think.
    Going fishing, soon, I hope.

  2. #47
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    Okay. That's it for me and this thread. I've done what I can for one forum - this one - in attempt to stave off an entirely foreseeable future with real consequences.

    I know those that traffic in other people's marks will complain the loudest, will voice "how impossible" it is, what a burden it is, etc.

    None of that, IMHO, will be a defense to an eventual lawsuit brought to shut down the practice/forum.

    The lawsuits will come. A precedent will be set.

    And the practice will continue in some other corner of the world until nations sort out processes for defending intangible property rights. That will come because the amount of money involved - with associated tax revenues - is so great that the issue can't be mired for much longer.
    Going fishing, soon, I hope.

  3. #48
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    The distinction between a stolen car and a domain that may or may not prove to be infringing is vast.

    Also, it's worth pointing out that there is a world outside of the US.
    When using google for counts - use double quotes for usage counts for multiword terms and set "match type" to "exact" for all search volume lookups. Click here for more info

  4. #49
    Join Date
    Sep 2002
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    Sonoran Desert
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    Originally posted by CrankyOldMan ......it is likely that one law firm with the right client will be able to file a claim against all the boards at the same time. It would likely start as a negative injunction (thou shall not allow for the trafficking) and could well end with a judgment for money damages...... [/B]
    Perhaps this is why DNF charges for membership and has lots of paid advertisers? That way they can make some real good profits while in business so dotcomgod has already well lined his pocket with profits but when the class action lawsuit comes at least he may then be able to close dnf and walk away from the business in the black, and with enough revenue to also pay for the $50,000 loss he took on that stolen domain brokered by Afternic

  5. #50
    Join Date
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    More long winded rationalizations...

    A disclaimer is all that is required for legal protection. A la ebay... "this is just a venue". Make sure every member agrees and you shift the responsibility to the member.
    Never start vast projects with half-vast ideas.

  6. #51
    Join Date
    Oct 2002
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    Keep the forum clean, the last thing we need is the forum be known as a "cave of thieves" or "cybersquatters"...
    The most important asset the forum has it's reputation and members...
    Anybody holding "good" tm domains (or conflictive simmilar domains ) shouldn't have a hard time selling those domains , there is plenty of aggresive" domain speculators and potential buyers, they (tm domain sellers) don't need this forum for that ...
    This froum is a clear sucess keep it that way!
    If the Admon want to play it safe, since there is some many "gray"areas and loopholes when it comes to TM's domains so be it!
    if somebody doesn't like the rules and enforcement leave...
    notice that the door has always been open.... (both ways)
    Last edited by Domo Sapiens; 01-17-2004 at 02:45 AM.
    "

  7. #52
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    Cranky, I'm glad you were able to make your point in as detailed a way as necessary. I wish this was more of a discussion than a monologue, but what can you do.

    ~ Nexus

  8. #53
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    One other point is there is some merit in keeping these kinds of things in a small number of locations. The tm lobby aren't stupid - they know about sites like this and can use that to their advantage. Anyone listing a tm infringing domain anywhere exposes themselves to potential risk by their own action - and thanks to the whois it's not like its anonymous or requires our divulging details in order for a tm holder to take matters further if they so wish.
    When using google for counts - use double quotes for usage counts for multiword terms and set "match type" to "exact" for all search volume lookups. Click here for more info

  9. #54
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    Originally posted by safesys
    One other point is there is some merit in keeping these kinds of things in a small number of locations. The tm lobby aren't stupid - they know about sites like this and can use that to their advantage. Anyone listing a tm infringing domain anywhere exposes themselves to potential risk by their own action - and thanks to the whois it's not like its anonymous or requires our divulging details in order for a tm holder to take matters further if they so wish.
    --And xenophobic robots.txt or no, bots like the NameProtect one probably don't really care to exclude sites from its roving eye.

    BTW, Safe, what do you mean "merit to ... a small number of locations"? Do you mean, there is "merit" to only posting domain name offerings in a smal number of Internet venues to somewhat limit personal liability, or... ?

    ~ Nexus

  10. #55
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    "merit" might be the wrong word, but what I mean is that its much easier for the tm brigade to keep tabs on a relatively centralised community vs a much wider dispersed one. the comment was from the tm holders perspective and not the domain holder.
    When using google for counts - use double quotes for usage counts for multiword terms and set "match type" to "exact" for all search volume lookups. Click here for more info

  11. #56
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    Thanks.

    ~ Nexus

  12. #57
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    Oct 2002
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    Originally posted by safesys


    Also, it's worth pointing out that there is a world outside of the US.
    May somebody please inform George Bush of this little know fact.
    cc. ICANN
    "

  13. #58
    Join Date
    Sep 2002
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    2,857

    Re: Forum management - banning posts offering obvious trademarks for sale

    Originally posted by CrankyOldMan
    This morning I checked the Sales threads and say that Spiderman.org was listed for sale.

    There's no question Spiderman is the subject of a well established trademark.
    How did I miss this thread?

    COM, please do your research more carefully next time. There is no registered trademark for "Spiderman". There is a registered trademark for "Spider-man".

    That dash in the middle makes all the difference.

  14. #59
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    That dash in the middle makes all the difference.
    how so?
    When using google for counts - use double quotes for usage counts for multiword terms and set "match type" to "exact" for all search volume lookups. Click here for more info

  15. #60
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    Sep 2002
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    Because that's the idea behind trademarks. They are registered exactly as quoted.

    I have registered "timechange" - no spaces, no dashes, a single word.

    Someone has applied for "time2change". Totally different.

    There is even a registered trademark for "Spiderman's".

    Now, if someone used "Spiderman.org" to display images of The Amazing Spider-manŽ it would be a potential case of trademark breaching.

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