>>
>>I agree with you that no-one should be able to register microsoft.net.au >>unless they
>>have registered a RBN/ARBN/whatever that relates to this name. However, the >>fact that
>>they have registered a name like this still does not mean that they have the >>right to
>>the trademark.
>>

Agreed, the fact that they have a registered name like that does does not mean that they have the right to the trademark, but it *does* means that they are most likely not just registering the domain name for the purpose of blackmailing the holder of the trademark, which is want we want to stop.
If 2 business have similar trading names then neither of them should be stopped from registering the relevant domain name, FIFS.

>>
>>ie. It is very likely that I would be able to register the name "microsoft >>consulting
>>services" with the ASIC. At this point, are you suggesting that it should be >>upto
>>the domain registery services to decide that I am _not_ elegible to register
>>microsoft.net.au  ?  Because making decisions like this _IS_ nasty.  Make a >>mistake,
>>and someone will sue you.
>>

I doubt very much whether you would be able to register "microsoft consulting
services" as a company name with ASIC (and if you did you may get sued regardless of any domain names!).  However, assuming you can and do register it, if you then try to register microsoft.net.au,  you should be allowed to do so  provided that you satisfy the requirements for .net.au (ie the ".net.au" 2LD is for those offering network services, like ISP's).

>>
>>I feel that it should be up to myself to ensure I don't infringe someone >>elses >>trademark
>>with the domain I register.  (this is how it is in the real world - you can >>trade under
>>any name you like [within reason] but if you step on someone elses trademark >>- they sue
>>you).
>>

Mere registration of a domain name will not necessarily infringe a trade mark. Infringement requires use of some sort.  Existing trade mark laws do not protect people from cybersquatters who register the domain name equivalent of a trade mark and then sit on it and try to extort money out of the trade mark owner. This needs to be stopped at the point of registration.

>>
>>Lets face it - the fact that melb-it, or connect.com.au said I could have >>the
>>domain microsoft.net.au isnt going to carry a lot of weight with MS's legal >>department
>>when they come thirsting after my blood.
>>

Not every trade mark holder is a large corporation with a bloodthirsty legal team.  Small-medium trade mark owners should not be forced to take legal action to secure a domain name to match their pre-existing trade marks.  They should be protected from cybersquatters at the point when the squatter attempts to register the domain name equivalent of their trade mark.


>>
>>It should be the registeries job to block name-grabbers and to create an >>environment
>>conducive to efficient and fair use of the available namespace, but not to >>start making
>>decisions on who has the right to which trademark.
>>

The registries do not have to make decisions about who has rights to which trademark.  I am not suggesting that.  They only need to implement policies to ensure that the registrant has a claim to the domain name.  INA already have a policy whereby they will only register .com.au names that are an existing commercial name (or a direct derivation).  I am not suggesting that they do much more than that.   My original point that led to this exchange was that no-one would dispute the need for a
policy preventing people from registering domain names similar to existing 3rd party trade marks where they do not have a legitimate pre-existing business use for the domain name and they just want to sit on it until the corresponding trade mark owner pays up (or sues).  That was in response to someone who queried a WIPO finding to that effect. (I think...)


David Wise
Freehill Hollingdale & Page
Brisbane

My views are not necessarily those of my employer and do not constitute legal advice.