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March 20, 2004
Scoping out Trademark Abuse Online
James Gleick chronicles the increasingly frequent collisions between trademark claims and rationality in Get Out of My Namespace, NYT Magazine. Some of his examples could be drawn straight from the pages of Chilling Effects, where we see corporations threatening those who use similar names in unrelated fields (Pet Friendly, Inc. against Pet Friendly Rentals), or those whose names couldn't plausibly have been confused (PayPal against PayPalSucks.com).
Elsewhere, and even in pre-Internet trademark law, we've solved these problems by distinguishing among namespaces -- different realms in which the same name can have different meanings. Computer programmers recognize that identically named variables can have different values in different scopes; trademark lawyers of 50 years ago recognized that a "Dawn Donut" in New York didn't interfere with "Dawn Donut" in Michigan. The advent of the Internet should make us more careful in scoping our references, not throw sense out the window by giving contested domain names to the highest bidder.
Says Gleick: To cope with the dynamic, entangled, variegated nature of our information-governed world, perhaps the law just needs to relax -- loosen the cords, instead of tightening them.... The law needs to prevent miscreants from pretending to be people they're not or from passing off spurious products -- but that is all. BODACIOUS-TATAS.COM may be unsavory, but it was not fooling anyone; it was not trying to impersonate the House of Tata; its wares were exactly as advertised.
Namespaces will collide. Let them.
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