One would generally expect that in general generic names would be harder to
Trademark etc and perhaps claim under Common Law Mark too.  They would also
be harder to register as a Pty Ltd company too!

How about this scenario?  Only the company name is changed the rest is
fact - *name* = semi-generic word

Company registered as     *name*.com.au Pty Ltd
Company trading under that name with goodwill and clients in Internet
related businesses
Company registers Trademark that includes protection of logo, the exact
company name ie *name*.com.au and the text www.*name*.com.au and a catch
phrase that in essence partly describes the business of the company and
goods and services description.

Surely then if auDA is advised of this information, they would have a duty
of care to provide all bidders in the auction for the domain *name*.com.au
warning of this claim??  Wouldn't you agree??

Furthermore, wouldn't it be prudent to actually have an active policy for
dispute resolution in place so that all parties can know the processes and
the playing field prior to purchase at auction?

Phil Wright


----Original Message-----
From: Paul Foxworthy [mailto:paul§cohsoft.com.au]
Sent: Friday, 5 July 2002 11:09 AM
To: dns§lists.auda.org.au
Subject: Re: [DNS] Very Concerned RE Trademark and IP issues with
'Generic Auctions'


At 01:44 AM 04/07/2002 +1000, Phil Wright wrote:

>It is within my knowledge that they are conducting one or more auctions not
>withstanding knowledge of third party interests in such Common Law Mark,
>Trademark and other rights and this seems to have not given rise to
>notification of such advice being issued to bidders. Why is auDA not
passing
>this, perhaps pertinent, information on to bidders??

Surely most generic words are unlikely to be (or to become in future)
trademarks for anyone? IANAPA (... Patent Attorney), but isn't it true that
you can't trademark a common word? Wouldn't the courts would be likely to
apply similar principles to any claim of violating a claimed common law
mark?

In other words, the warnings you envisage are *less* necessary for generic
names compared to domain names in general. The standard terms and
conditions should suffice.

Cheers

Paul Foxworthy


---- Coherent Software ------------- http://www.cohsoft.com.au/ ----
For interactive Web sites, databases, software, animation
Aust. Family History Compendium at http://www.cohsoft.com.au/afhc/


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