Name Rights of Non-E Based Businesses vs E-Businesses

[Grrilla]

This is not a question about legality, but, rather, about "fairness" as you see it.

Should a business that depends upon traditional methods of income have more rights to the use of a name then an internet dependent business?

On one side are the traditional businesses, that have invested/are investing resources and hard work to develop their businesses and recognition of their brand names.
On the other side are the e-businesses that have invested/are investing resources and hard work into the development of ways to better transact business from a computer and w/o whom there would not be no e-business and no internet providing an internet business platform.
One side has developed a name and uses the internet to optimize their income from it.
The other side has created a platform (the net), but doesn't have "name rights" that are equal to the "internet rights" that the other side enjoys. Who is benefitting the most from the others work?

What I am getting at, and what initiated this line of thinking, is how extremely territorial businesses are w/ their trademarks. Understandable to a degree, but when a developer wants to use a dictionary word on the *internet* w/ content and focus in an area totally unrelated to "Mr Big's" business, and he gets jumped on by "Mr Big's" legal staff w/ a threatening C&D, (after they have already made an immediate application for a new TM class that they will never use, but will effectively shut out "Mr Little"), it would seem that "Mr Big" is biting the hand that brought him to the party. We are talking about a *tld*, that was born of, and lives on the internet, not someones logo, packaging or product.

The 2 models (Traditional and E-business) are best distinguished by their relative dependence upon the net for survival. And remember, Mr Big came to the party after it had already begun to roll.

Of course this is a simplistic analysis. E business and traditional goods and services business have become so intertwined that it is difficult to break them apart. One major area where the two sides become distinct, however, is over the issue of name rights. Do you think one side is getting an unfair advantage in name rights and usage on the internet?

 

[armstrong]

If the Mr Little in your example is a real online business with real products and services in a different TM class, then IMHO Mr Little should be entitled to the domain name if he got to it first.

But if Mr Little is a domainer with no immediate plans to develop the domain being disputed, the reality is he probably stands little chance against Mr Big in a UDRP fight.

However, if the name is truly generic (i.e., "newspaper"), then whoever got the name first, Big or Little, has absolute rights whatever happens. What's "truly generic" is for the courts to decide, as in the pending case of "windows".

 

[RJ]

I agree with armstrong. When there are two parties that have a legitimate claim on a term, it should not matter who is the bigger company.

 

[Grrilla]

Mr Little is usually going to get there second because goods and service businesses that are not reliant on the net in the majority of instances, were using the name before the net became a viable business platform and could continue to operate w/o the net. In my model, these businesses are merely *using* the net to optimize existing income. The net came along and they were given a platform on a platter, so to speak, whereas the e-businesses in my model, were/are central to establishing the platform. That is the crux of the issue. Legality aside, fairness to the forefront. Doesn't there seem to be a little incongruity here, when a business that lives and dies by the internet, can't optimize their success w/ a name in a "class" that Mr Big is not involved in or active in, but nevertheless owns the rights to? Couldn't this be viewed as a reverse form of cybersquatting? Mr Big got to the name first, but what has Mr Big done for the internet that would allow him to hoard the name and block internet dependent businesses from having improved chances of success in a non competitive field. Something just doesn't sit well w/ me here.

PS Perhaps Mr Big and Mr Little were not the best names to use here. Mr Goods and Services (Doesn't need the net to exist) and Mr E-Biz

 

[armstrong]

Yours is an ideal concept. But even if everone agreed with it, I don't see how it can be implemented in the real world. How do you measure who has contributed more to the development of the internet? What if Mr. Goods has zero internet presence, and yet his company manufactures silicon for Intel? Or what if Mr. Ebiz is in fact the infamous Mr. John Zuccarini?

Your concept is simply impractical, so the best we alternative is first-come-first-served for those with legitemate use.

 

[Grrilla]

Ah... the Platonic-Aristotlian dichotomy. Individual cases would have to be examined as opposed to giving a priori rights to the 1st name holder. This would be one possible solution in the real world.