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Roussos loses last .music LRO

Kevin Murphy, August 27, 2013, 15:46:45 (UTC), Domain Registries

Constantine Roussos’ DotMusic Ltd has lost its seventh and final Legal Rights Objection against rival .music applicants.

In the decision in DotMusic Ltd v DotMusic Inc, published (pdf) this hour, WIPO panelist Mark Partridge ruled:

the Panel is compelled to conclude that the Objector lacks enforceable rights. The term “.music” (or “dotMusic”) would in the Panel’s opinion be recognized as a generic designation for a top-level domain name directed at or relating to music and music-related services. As a result, the Panel is of the opinion that the Objector cannot own trademark rights in the terms “.music” (or “dotMusic”) per se as a matter of law, even if it has developed awareness of that term as being associated with it as the name of an entity.

That’s roughly in keeping with the first six DotMusic decisions and a not remotely surprising result.

The objections phase for .music is not over yet, however. There are still seven Community Objections pending, most of them filed by American Association of Independent Music, which is affiliated with Roussos’ bid.

There’s also the possibility that DotMusic and/or .music LLC (which also has industry backing) could apply for a Community Priority Evaluation, which would kill off all rivals at a stroke.

I’ve yet to hear a convincing argument why either application could win a CPE, so my guess is that .music is, eventually, heading to auction.

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Comments (58)

  1. Yes, not surprising since WIPO panelist Mark Partridge ruled in favor of USPTO even though our trademark is NOT U.S-based. So since it got rejected in the USA does that mean the rest of the world is insignificant? Many issues with the LRO process, especially the issue where Panelists can use other .MUSIC LRO decisions as their basis for a decision. This is highly prejudiced but then again I might be wrong.

    “I’ve yet to hear a convincing argument why either application could win a CPE, so my guess is that .music is, eventually, heading to auction.”

    Kevin,

    These irresponsible, self-serving statements do cater to your Advertisers don’t they (Minds and Machines & Directi – both .MUSIC open applicants).

    A convincing argument? Perhaps use some common sense. Is there a community? Yes. Does it represent “a” significant portion of the community? Yes. Do supporting organizations have “memberships”? Yes. Is there a mutual, common interest and delineation in the “legal distribution and promotion of music”? Yes. Do we have appropriate registration policies? Yes.

    If that is not convincing to you then I do not know what is. I suggest a bit more “convincing” reporting that does not fully cater to your advertisers and your bottom line. Same applies with Domain Name Wire who are owned by Directi.

    I suggest you dedicate some time on reading and studying the CPE rules and actually looking at some applicants, their policies and how their Application meet the CPE criteria. Of course you are buying the open portfolio applicant Koolaid because they do pay your bills.

    Best

    • John Berryhill says:

      “Is there a community? Yes.”

      Is the community signified by a privately-owned trademark?

      I’m having a hard time understanding the connection between the “community” on the one hand, and the “trademark” on the other hand. I take it that each member of this community, defined as those having an interest in the lawful distribution of music, is a licensee of the mark then, correct?

      Or are the “mark” and the “community” two different things?

      • Yes, the LRO (“mark”) and CPE (“community”) processes are two different things.

        That said, Mark Partridge made an irresponsible comment alleging that he (Panel) “is of the opinion that the Objector cannot own trademark rights in the terms “.music” (or “dotMusic”) per se as a matter of law, even if it has developed awareness of that term as being associated with it as the name of an entity.” So building a brand is worthless and does not give others an unfair advantage?

        Mark Partridge was selected to make a determination on a valid European trademark which has nothing to do with USPTO or a rejected USPTO application for .MUSIC. Fact is we have a valid trademark which is not a U.S trademark. LRO rules do not ask for a WIPO panelist’s opinion whether a trademark should have been granted. It was granted and their determination should have been based on that fact. Having a U.S trademark is NOT a requirement to having IP rights but seems Partridge has based his decision on the premise that since the USPTO did not grant the trademark in 2008/9 that it means any trademark granted is not valid and worthless. Saying that DotMusic “cannot own trademark rights in the terms “.music” (or “dotMusic”) per se as a matter of law” is one of the most weakest legal arguments I have heard to date. Partridge should have respected the fact that we had a trademark and acted neutrally with the merits of the case at hand not focusing on U.S law entirely.

        His opinion is that a term such as “.music” trademarked in the classes of “domains” should be offered zero protections. Under that note “Apple” should not get any protection in the case of “computers.” Why have Trademark law if such a basic right is rejected. What is the point of trademark law if the Mark protected can NOT be protected in a class that is unrelated to its meaning? Last time I checked running a domain registry and offering domain names has nothing to do with music.

        Mark Partridge uses his reasoning to reject the LRO based on the fact that “the Objector has previously tried to register the character marks .MUSIC and DOTMUSIC with the USPTO, only to have those applications denied for.” So what? Mark Partridge should respect the fact that we do have European Trademarks for .MUSIC in the class of domain names and have built awareness for it (as he recognizes but yet fails to recognize that there would be an unfair advantage given to objected-to Applicant) and a recognized brand in both the domain and music space.

        It is my personal opinion that Panelists focused entirely on finding reasons to reject the Objection i.e they were 110% biased from the beginning. Why quote other .MUSIC LRO decisions? What happened to an independent decision without external influence?

        The U.S. law is not international law and citing a USPTO trademark decision as a reason to reject our perfectly legal European trademark with bona fide activities is another testimony on how the LROs were set up to fail and were 100% filled with prejudice.

        I think ICANN needs to investigate these LRO decisions more closely. I think any neutral body would make a safe determination that the entire LRO process was not conducted in a neutral manner and that by allowing decisions to be public before all string LRO determinations were made did create prejudice against Objectors. Why would Panelist quote other LRO decisions for the same string? Obviously if they read a decision on the same string based on the same facts they will be biased

        Disappointing result but typical of this process. ICANN needs to wake up and start paying attention to what is really going on. Leaving everything to 3rd-parties will has created inconsistent or unfair determinations. There is too much prejudice in this process and too many conflicts of interests.

        We hope the other processes are conducted in a more fair manner without inconsistencies that are reflective of the core objectives of the new gTLD program. The Internet is not for sale and the namespace should be run in the global public interest.

        • John Berryhill says:

          “Yes, the LRO (“mark”) and CPE (“community”) processes are two different things.”

          I wasn’t asking about the ICANN processes. I was asking about the underlying reality to which the processes are to be applied.

          Now, let’s take as given that there is a community defined as “those with an interest in the legal distribution of music”. What is the history of this community? When did it become one? Does it have an existence apart from the claim of ownership of goodwill in it by an individual human who filed a trademark application?

          My point is that, yes, the AGB defines two different processes for two different things. I own a pet. It is not a dog on Tuesday and a cat on Wednesday, depending on the convenience of whether some administrative process confers various advantages on whether it is a cat or a dog. I can call it what I want, but the underlying reality is that it must be one or the other.

          None – none – of the other .music applicants has proposed or has any plan to use the subject mark of any of your EU registrations. None – none – of your registered marks confers a presumptive right in the string “.music”, not even under the application of relevant EU law. The relevant EU directive states:

          “A Community trade mark shall not entitle the proprietor to prohibit a third party from using in the course of trade:

          (b) indications concerning the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of the goods or of rendering of the service, or other characteristics of the goods or service;”

          So, even if we take your trademark claim as given, under EU law such a trademark does not entitle the owner to prohibit others from using “indications concerning the … intended purpose … of the goods or service”. If someone intends to run a TLD for an intended purpose of distributing music, or what-have-you in relation to music, then EU law does not entitle you to prohibit them from using the term in order to indicate, yes, this TLD is intended for music. No amount of waving around a trademark registration for a logo changes that result – it is an express limitation of trademark rights which is baked in to the EU law you keep talking about, but not actually citing or applying to the facts.

          But going back to the inherent inconsistency caused by the tension of a sole private owner of rights in the goodwill generated, not by that owner, but by a “community”, there is a reason I asked about how many licensees you have in the mark. I assume the answer is zero. So, what you are arguing on the one hand is not consistent with what you are arguing on the other hand. You want to argue (a) there is a community associated with this trademark in which (b) NO member of this community has your required legal permission to identify themselves as one.

          Communities define themselves by inclusion. Trademarks define themselves by exclusion. What MAKES a community is the community, not someone who claims to “own” the community.

          Islam, for example, is a community, in fact several communities. To join, one professes the Shahada (“There is no god but God, Muhammad is the messenger of God.”) Profession of the Shahada is what makes one a member of that community. As such, it is the sign and symbol of those who are members, and it is NOT the private property of some individual capable of filing a paper and paying a fee. Indeed it is the POINT that nobody owns an exclusive right in the Shahada – it belongs to all who are willing to believe.

          This is, at bottom, what makes “community” and “legal rights” two different things. One of the processes was designed for a group which, collectively, claims an association with a term because it is “ours”. The other process was designed for a private entity which, exclusively, claims an association with a term that is “mine”.

          The one categorization which straddles this line is what is known as the “collective mark” or “certification mark”. These are signs and symbols which are used to indicate the user to be a member of, or have satisfied standards of, some organization. The best known US example is “REALTOR”. The NAR is not a “REALTOR”. Its members are “REALTORS”. The NAR is in that sense a steward of the goodwill created by use of the mark, not by the NAR, but by its members. The “Good Housekeeping Seal of Approval” or the Underwriter’s Laboratories tag are other well known examples. I’ve long said that a TLD could function as a mark under circumstances where it acts as a collective mark or certification mark. Because what a collective or certification mark does is to signify that the licensed user – not the owner – has been certified to meet certain standards.

          Now, I don’t profess to know the heart and mind of anyone else. But what you do not appreciate is that the appearance – the appearance mind you – of some of what you’ve done is to look at the developing AGB and say, “okay, I get an advantage if my pet is a dog, so it is a dog” and “okay, I get an advantage if my pet is a cat, so it is a cat”. Yes, the LRO and CPE are indeed “two different things” as you put it. That’s the point, and that’s how it comes off to many others whose hearts are as pure your own.

    • Kevin Murphy says:

      Constantine,

      Advertisers get no special privileges on DI and DI has no interest whatsoever in which company wins .music.

      If you don’t believe me, feel free to read

      http://domainincite.com/?s=tldh

      and

      http://domainincite.com/?s=directi

      and tell me if you can find a single example of either of these advertisers getting an easy ride.

      I have a waiting list as long as my arm of companies ready and willing to take over advertising space as soon as it becomes available.

      Attacking me is just churlish, dude. I would expect better, especially since we’ve had the CPE discussion before.

      But I’m happy to debate you on the facts:

      As you know, CPE is a scoring mechanism where you have to score 14 out of 16 points in order to pass.

      In other words, you lose three points, you fail.

      The way I see it:

      You lose 1 point on Delineation. Your application names a few dozen types of community members, of which “music fans” is one. That makes your community larger than the number of people on the planet owning a credit card, which is usually a prerequisite to buying any domain name. It doesn’t strike me as particularly “delineated”.

      You lose 1 point on Support. You have lots of letters of support, but they hardly cover the entire “community”. They don’t even cover the whole music production industry, where many of the biggest players support the other Community applicant.

      You lose at least 1 point on Opposition, possibly 2 points, due to the fact that there’s two Community applications with different backers. If you both go for CPE, the other applicant’s supporters can gang up on you and lose you 2 points, no problem.

      You lose 1 point on Name Selection, given that your proposed “policy” there is so broad it seems to encompass essentially any string.

      You lose 1 point on Eligibility. You’ve tried to tick the box here by introducing eligibility restrictions on your premium names, but I don’t think that’s going to work in a CPE. My read of the Guidebook is that *all* names need to be restricted.

      There’s 5 or 6 points lost already, so you score 10 or 11 and your CPE fails.

      I also think you may lose points elsewhere, but I think I’ve made my point.

      If you think I’m wrong — based on the facts rather than ludicrous allegations about my objectivity — please tell me why I’m wrong.

      Kevin

      • Kevin, let me just give you an example why you (as well as others) have not put enough time or research in the CPE process. You really are making false claims on our application as well.

        Our delineation pertains to common interests in the “legal distribution and promotion of music.” Pretty simple to understand. Fans – as in the case of crowdfunding e.g Kickstarted – now play a critical role in that.

        Also in terms of policies, you claim that “If you both go for CPE, the other applicant’s supporters can gang up on you and lose you 2 points, no problem.”

        You are wrong on that as well. You need to showcase that there is some sort of harm and “ganging-up” is not acceptable per the ICANN Guidebook: “Objections or comments must be of a reasoned nature. Sources of opposition that are clearly spurious, unsubstantiated, made for a purpose incompatible with competition objectives, or filed for the purpose of obstruction will not be considered relevant.”

        You claim that we “lose 1 point on Name Selection, given that your proposed “policy” there is so broad it seems to encompass essentially any string.”

        Our Name Selection policy is pretty restrictive and NOT broad:

        Names Selection Policy to ensure only music-related names are registered as domains under .MUSIC, with the following restrictions: (1) A name of (entire or portion of) the musician, band, company, organization, e.g. the registrants “doing business as” name (2) An acronym representing the registrant (3) A name that recognizes or generally describes the registrant, or (4) A name related to the mission or activities of the registrant.

        This policy is central to preventing cybersquatting and not allowing illegitimate 3rd-parties from registering others’ names.

        I can write an entire book on our policies but I do suggest your reporting gives our community-based efforts and others the benefit of the doubt. As you can see we are not at all broad and we are reflective the true community and our policies have more safeguards than any other applicant (this includes cross-checking validations in the MCMO launch stage).

        If you want to see more safeguards we have incorporated feel free to check out our Application. Here are some others:

        Music-dedicated Usage Policy and its connection to sorting of Premium domains using NAICS classification codes ensures usage and content only relate to music entities and activities. This raises the quality level of .MUSIC domains, increases their search ranking and ensures that non-music related content, such as pornography, is not acceptable. Far Further’s application allows all types of content, even porn. As mentioned in DotMusic’s application “Community members will be able to use their membership credentials to be included in the uniquely-classified Premium Channels that are sorted according to NAICS⁄ISIC classifications. For example, music publishers (NAICS code 512230) will be able to organically self-categorize themselves in a highly relevant manner and be included in the http://www.publishers.music Premium Channel using their membership credentials to participate.” Since DotMusic’s Use policy only allows usage and content relating to music activities, the NAICS classifications can not be abused to include any other type of entity not relating to music. The NAICS code function in the registration process is only to sort the premium channels to ensure stronger organization of these premium domains. They are unrelated to abuse or eligibility. For example, NAICS code 561599 is “Music Ticketing,” but refers to “All Other Travel Arrangement and Reservations Services.” Since DotMusic’s Registration Use policy only allows music entities, music usage and music content then no-one could register as a “bus ticketing office” (under NAICS code 561599) since they would not meet the registration Use and Eligibility requirement.

        Dedicated Music Policy and Copyright Infringement Dispute Resolution Policy (MPCIDRP)

        Globally protected music marks list

        Feel free to check: https://gtldcomment.icann.org/applicationcomment/commentdetails/11700

        This is far from broad. It is restricted and appropriate.

        • Kevin Murphy says:

          You don’t think “A name that recognizes or generally describes the registrant” and “A name related to the mission or activities of the registrant” is a broad policy?

          We’ll have to disagree on that point.

          As soon as I register a domain and put up a web site, that domain instantly describes my activities. You’ve written a policy that allows any string.

          • Kevin, you need to read the entire application to see how it fits together. Policies are interrelated. You can not do what you are saying because you will be in violation of our Use policy which ONLY allows music-related content. If your activities are not related to music – hence related to the music community – they are in violation. Putting up a site with any type of content that is not music is not acceptable.

        • John Berryhill says:

          “Pretty simple to understand. Fans – as in the case of crowdfunding e.g Kickstarted – now play a critical role in that.”

          Then there is your answer. Clearly, the community represented by your application is huge, and they support your application. Simply inform the community, get a couple of bucks from each member, and there is no auction you can’t win.

          Simple.

  2. Zack says:

    Nexus to what community? These objections will count against the CPE criteria. So there you have it – 13 (or possibly 10) out of 16.

    • Foo says:

      Only community objections count.

    • Zack, I suggest you take a moment to read the CPE rules before you place judgement. Understanding how the CPE process works and how points are allocated are key. We can discuss points all day long but in the end the Panelist will be asked to make a determination on a process that is supposed to give priority to real communities not fake ones. The threshold was placed high to prevent gaming. If it looks like a community, it is organized like a community, it has common interests and policies that serve the community then it must be a community. Points should reflect that. rationalizing why legitimate communities with credibility should fail is not the objective of the new gTLD program. People need to start thinking about the global public interest. This process was not meant to be focused on serving highest bidders.

  3. Andrew says:

    Constantine has a habit of pointing out small things in decisions that he agrees/disagrees with rather than looking at the overall picture of what the panelist is trying to say and how that affects the overall decision.

    He also has a habit of trying to attack people’s integrity rather than the substance of their arguments.

    BTW, Directi does not own DNW.

    • Andrew you are 100% correct. This has everything to do with integrity. Full disclosure must be made. As in the case of DomainNameWire you do work for Directi’s media businesses including Media.net, Skenzo, and Domain Advertising. It is a fact. Also it would be more useful for readers to have a writer argue their point with facts not just opinions. Kevin’s arguments in regards to our community application lacked substance because it was full of inaccuracies. Same pertains the “ganging up” statement he made. If I am calling things out it does not mean I am attacking his integrity. I am merely pointing out the facts. Let us stick to the facts not opinions.

      It is safe to say DomainNameWire never gave community applicants any credibility and attacked the notion at every opportunity. It is your opinion but since you do run an influential blog I suggest you spend a bit more time looking at the “overall picture” surrounding ICANN and selling off gTLDs to highest bidders as well and how your blog opinions does affect the opinions of many who do not have the time to look into the CPE rules and everyone’s application. I do believe the readers deserve more neutral reporting with stronger arguments. Argue both sides not just one side.

      If you believe that Partridge’s comments and rationale have “substance” then we should leave it there. I think they have unintended consequences. I totally disagree but of course you can have your own opinion.

      Andrew be assured is that I am thinking of the “overall picture” and how this entire process is being compromised e.g inconsistent string similarity decisions amongst many other things. I suggest everyone in this ICANN community to be thinking of the bigger “overall picture”.

      Nothing personal. I do want the new gTLD program to be a success though and in the public interest. That is what I am fighting for, especially in the case of .MUSIC.

      My 2 cents on the matter.

      • Kevin Murphy says:

        I’m happy to correct any inaccuracies.

        So far you’ve pointed out areas where we have differing opinions, but no inaccuracies.

        • Kevin, all I am urging you to understand is that CPE will be graded based on facts not opinion (ICANN did make statements saying that the results will be objective not subjective).

          We have a distinct Name Selection policy and Use policy and Eligibility policy and also incorporate phone/email validations even cross-checking verification option during the MCMO launch phase. The last thing that we want is legitimate music community members not to be able to register because of a highly restrictive policy which creates unintended consequences and blocks legitimate music constituents.

          Bottom line we want enhanced safeguards and we want .MUSIC domains to have music-only content. We also are including a Globally Protected Music Marks list and have staged our launch in phases according to priority to protect music IP holders. You have to look at the application as a whole and how it fits together not just make an opinion based on one policy alone. Some people do not even understand the NAICS part of our application and think it is our strict delineation. The NAICS codes were used as guidance for organizing the Premium Channels. Our delineation pertains to the “legal distribution and promotion of music.” It is quite specific and goes to the core of the music community and their common interest and our purpose: create a safe haven for music consumption on the Internet. Of course many will say that music constituents all have varied interests but this is untrue. All share a few interests in common. Our focus is on this common interest they all share and our objective is to best promote it under a gTLD in a safe and all-inclusive manner.

          I do value your opinion and certainly would be nice if community applicants (not just our initiative) do get some level of recognition as opposed to be portrayed as “losing” cases. We all have a purpose in this process and passing “Community” should be based on the merits of an application and its support/objections and its credibility. Of course community applications which were set up to game the process should not pass. Most community applicants in my opinion should pass CPE since they are credible and have incorporated policies that do serve their communities. We do need some diversity in the program not just a bunch of portfolio applicants “buying” up the entire space and taking over all the most important semantic strings.

          My 2 cents.

          • Kevin Murphy says:

            My opinion is based upon a close reading of your application and of the CPE scoring mechanism, as I went into some depth explaining in an earlier comment.

            It’s not just a subjective gut feeling. I’ve looked at the numbers and I can find many, many ways in which you score 13 and under, which is the only thing that matters here.

            The CPE presents a very high bar that was designed to prevent people seizing control of potentially lucrative generic strings without genuine community backing.

            It was designed to prevent another .xxx, in other words.

            You’ve bent over backwards to ensure that your application ticks all the CPE boxes, which is what ICM did with the “Sponsored” criteria in 2003 and what ICANN expected applicants to do this time around.

            Essentially, the CPE bar was set high in order to prevent *you* from easily gaming the process.

            Whether it was set too high is a different debate. It is what it is. Maybe after the results come out there will be cause for ICANN to revisit the policy, as the case seems to be with the String Confusion Objection.

            Is an auction the best way to decide who gets a gTLD? Probably not. But, again, them’s the rules.

          • “The CPE presents a very high bar that was designed to prevent people seizing control of potentially lucrative generic strings without genuine community backing.”

            And this is exactly my point. Those with a genuine community backing should be given priority. You are assuming that getting community backing was something easy and taking all those efforts for granted. ICANN gave us the rules and we are following them.

            I am sure you and others can find ways to give community applicant’s a score of zero if you wanted. The basic issue should be whether the community is legitimate, genuine and it meets the goals of the new gTLD program. This is what CPE should be about.

            So in your opinion how does a community of a “lucrative generic string” get a score of 16? If you say it can not then perhaps this should be the topic of conversations. If you can score us 13 or under then why don’t you give me an example of a 16. I bet you that you can’t because there is some bias in the process which should not be existent in this important process.

      • But that’s just it…you *did* attack Kevin’s integrity in your first response to his post.

        • This is about the integrity of information. Nothing personal except that the facts need to be accurate and reflective.

          • Kevin Murphy says:

            I’ve spent hours talking about .music with you, Constantine, personally — some of it in pubic and some of it on a panel in front of an audience — and precisely no time at all talking to any of my advertisers about it.

            DI trades on its independence and honesty. If I’m wrong, I correct. If I change my mind, I say so and say why.

            Believe me, I can think of no greater professional insult than suggesting, as you did, that DI’s advertisers have bought my opinion.

            And yet I still like your .music application.

            Weird how that works, isn’t it?

          • I suggested plainly that your comments serve certain open portfolio applicant interests. The day i see you or Andrew criticize your advertisers and present them under the same light as you have for my company then I will change my opinion. It is natural that you don’t want bite the hand that feeds you. Despite you saying you like our application everything you say points to the opposite. If you are in favor then perhaps cut some community applicants some slack. Your opinion has influence so making points against community applications might create unintended consequences. We all need to stand for something and call it out if there is a serious problem. You have the platform to do so and that is a compliment to your work. Always a good thing to present both sides of the story. However I do have issues how community applicants are portrayed. Perhaps you should focus the gaming part on how demand media, donuts and Google passed background checks. Community applicants are not seeking loopholes. Just a fair representative treatment that reflect the goals of the new gtld program.

            My 2 cents.

          • Rubens Kuhl says:

            As a reader, I don’t want DI to cut any slack for any applicant, myself included.

  4. “I have a waiting list as long as my arm of companies ready and willing to take over advertising space as soon as it becomes available.”

    That’s a good problem to have, where demand exceeds supply……the solution would seem to be to auction it off to the highest bidders, rather than have a waiting list. 🙂

    • Kevin Murphy says:

      Know any good auction providers?

      • George, you want a good investment? Go lock up advertising space on the top domain blogs for the next year. Then turn around and sell it to new TLD operators who find that it’s all sold out when they’re ready to launch their domains next year 🙂

        • hehe Andrew. I suspect most new gTLD operators will be wasting their money if they believe domainers who read blogs will register a lot of domains in new gTLDs…..that well is probably dry (e.g. only 1 .xxx domain name was registered yesterday, according to RegistrarStats.com).

          Methinks they’ll need to spend their money paying GoDaddy and other registrars for placement on their sites.

          • Kevin Murphy says:

            I always tell potential advertisers that if they’re targeting registrants then they’re talking to the wrong blog.

            This is a business-to-business site.

            If you’re a launching a gTLD, you advertise here to attract registrars and other business partners, not people who will pay you $10 a year for a single domain name.

  5. Rubens Kuhl says:

    I just hope CPE doesn’t repeat string similarity panel and string confusion objections lack of consistency. If the same panel could do all CPEs it will be better; if not, some groups (like corporate identifiers) could be dealt by a single panel.

    • Kevin Murphy says:

      So far ICANN *seems* to be being a little more conscientious about the CPE than it was the SCO

      http://newgtlds.icann.org/en/applicants/cpe

    • Rubens,

      The inconsistency is exactly what we are trying to prevent. The CPE process is entirely subjective and highly problematic if there is a hidden bias by the Panelist.

      In full transparency since ICANN did create a CPE process with a maximum score of 16 then perhaps ICANN can show us an example of what a community application with a score of 16 out of a 16 looks like for a “lucrative generic string” (as Kevin calls it). If ICANN is unable to provide this “perfect” application that scores a 16/16 then we all know this CPE process would be deemed a complete failure. At some point they will have to answer that question though because it is relevant. They can not set up a system and process that is designed to fail without being accountable.

      I assure you many community applicants – if they are failed – will be asking ICANN to showcase a 16/16 score. Can you come up with it? If you can not score a 16 then what is the point of CPE and more importantly why has ICANN and its staff neglected our comments over the years to fix the threshold issue or give us a scientific answer why 14 was chosen and not 12 or 13?

      There will be repercussions if the CPE is a complete failure because many community applicants have devoted lots of years, resources and have brought together significant portions of corresponding communities that are as genuine as you can get.

      In my opinion ICANN should educate the CPE panelists that they do need to look at the “overall picture” and put things in perspective to answer the most important question: is this a genuine community or a fake one? If it is genuine and significant then any reasonable person would agree that an applicant passes CPE. It is safe to say that “gaming” the community process is near impossible and it is pretty easy to spot whether a community is genuine or not.

      CPE should be aligned with ICANN’s goals and the new gTLD Program’s objectives and only that If the AGB is flawed (and it is flawed in so many ways) then those areas should be rectified to meet the goals of the Program and to have a bit more diversity in the Program not merely a landgrab by a few portfolio applicants with deep pockets. How is that in the global public interest?

      ICANN seems to be a bit more conscientious about CPE because they know a lot is on the line for those community applicants and the new gTLD program if CPE does not meet the goals of the new gTLD Program and everyone fails.

      Kevin, if you do support genuine communities passing CPE then perhaps you should perhaps make it a point to support that notion and obviously give those community applicants the benefit if the doubt. The AGB is not the Internet’s bible and it is flawed. GAC’s Communique and ICANN accepting enhanced safeguards serves as an example how flawed the AGB is. I am still waiting to hear back from ICANN why the arbitrary number of 14 was chosen and not 12 or 13. Still there is no answer because this question – along with the question on how you can score a 16 in the CPE – will be purposely be ignored because ICANN wants to leave things to 3rd parties to decide even though most have not participated in ICANN affairs nor fully understand the unintended consequences of their decisions.

      It is good to have those conversations though and highly important.

      • Wait – isn’t the point that you should not be able to get 16 out of 16 for a lucrative generic string?

        • The point is if a maximum score is 16 then it should be attainable. If it is not attainable then why have a CPE and a community based application? Some accountability by ICANN is in order otherwise.

          • Donnie, I think you are on to something but every string is different, including its community. CPE requires “a” significant portion of the community to support the string. Not the majority of the community. The music community does have many associations that represent huge numbers and also its commercial component is driven by digital distributors that control what gets on to the “legal” stores. This is why we delineated with common interests in the “legal distribution and promotion of music.” It is quite specific and represents “a” significant portion of the community.

            In regards to .SITE or .WEB community I do not know. .MUSIC is different because it is niche. We made the point in regards to the RPM document for ICANN concerning the Trademark Clearing House that trademark holders that do not have music-related activities are not Eligible under our community-based application policies and that to claim a name they have to have a trademark in the classifications surrounding music activities: http://www.icann.org/en/news/public-comment/rpm-requirements-06aug13-en.htm

            I strongly disagree that .MUSIC is generic. It is not. It is very clear with a community. If you were to argue .SITE or .ONLINE is generic then I would agree. This is why you have trademark law and classifications. Each classification – such as music-related activities – is pretty specific. Others are not. This is why there is a “Music Industry”. Have you ever heard of the “Site Industry” or the “Web Industry” as a common term? Again, i only suggest you understand the nuances between certain words. Music is cultural while others are not. People drive music hence there is a community. All words are different.

            In regards to scoring 16 I believe it is attainable. That is why ICANN chose 16 points. Those who will attain it have to compromise significantly with their policies – like we have. The tradeoff is quality over quantity and safety over abuse. Last but not least a community applicant does compromise making much less than an open applicant. So it is not as lucrative as one may claim. In an auction situation both our application and Far Further’s would be worth way less than a completely open application. And this is the problem again. Mathematically in an auction community-applicants are screwed because we can not compete because our applications are worth much less so even in the case of having unlimited funds it would make bad business to try to outbid an open applicant because their ROI would exceed that of a community applicant. Many people need to step in community-applicants shoes for a moment and realize the compromises community applicants make and what they lose. Furthermore community applicants can not change their application to become more open.

            The word “generic” has been used too loosely in the ICANN community. So a “.BRAND” or a “Proper noun i.e a city/country” is the only string that is not “generic” right? The bottom line is that it all depends and you can not have a one size fits all approach. As in my “Music Industry” example illustrates it is pretty clear that a cultural string does necessitate a community to function. However I do agree with you about many non-cultural strings. It would be hard to meet that threshold. I suggest many do take exception to many community-based applications where cultural or linguistic attributes are crucial for their community to function.

        • Donnie says:

          I think this hits the nail on the head.

          As a thought experiment, imagine someone went for .WEB as a community app. No matter how many organizations that were part of the “internet community” backed this app, via CPE this would and should fail. The intention of the CPE is built to prevent gaming of highly generic strings through fabricated community involvement and offer protection for communities that have tangible boundaries.

          If this app was for .MUSICNYC, it would be easier to have a tangible community and put usage restrictions in place that made sense. The heart of this is that the .MUSIC is flat out too generic to pass CPE. 16 points is definitely attainable, for non-generic strings that are being used by definable communities. 16 points is and should not be awarded to any generic terms with amorphous communities.

          • Kevin Murphy says:

            +1

          • Donnie, I think you are on to something but every string is different, including its community. CPE requires “a” significant portion of the community to support the string. Not the majority of the community. The music community does have many associations that represent huge numbers and also its commercial component is driven by digital distributors that control what gets on to the “legal” stores. This is why we delineated with common interests in the “legal distribution and promotion of music.” It is quite specific and represents “a” significant portion of the community.

            In regards to .SITE or .WEB community I do not know. .MUSIC is different because it is niche. We made the point in regards to the RPM document for ICANN concerning the Trademark Clearing House that trademark holders that do not have music-related activities are not Eligible under our community-based application policies and that to claim a name they have to have a trademark in the classifications surrounding music activities: http://www.icann.org/en/news/public-comment/rpm-requirements-06aug13-en.htm

            I strongly disagree that .MUSIC is generic. It is not. It is very clear with a community. If you were to argue .SITE or .ONLINE is generic then I would agree. This is why you have trademark law and classifications. Each classification – such as music-related activities – is pretty specific. Others are not. This is why there is a “Music Industry”. Have you ever heard of the “Site Industry” or the “Web Industry” as a common term? Again, i only suggest you understand the nuances between certain words. Music is cultural while others are not. People drive music hence there is a community. All words are different.

            In regards to scoring 16 I believe it is attainable. That is why ICANN chose 16 points. Those who will attain it have to compromise significantly with their policies – like we have. The tradeoff is quality over quantity and safety over abuse. Last but not least a community applicant does compromise making much less than an open applicant. So it is not as lucrative as one may claim. In an auction situation both our application and Far Further’s would be worth way less than a completely open application. And this is the problem again. Mathematically in an auction community-applicants are screwed because we can not compete because our applications are worth much less so even in the case of having unlimited funds it would make bad business to try to outbid an open applicant because their ROI would exceed that of a community applicant. Many people need to step in community-applicants shoes for a moment and realize the compromises community applicants make and what they lose. Furthermore community applicants can not change their application to become more open.

            The word “generic” has been used too loosely in the ICANN community. So a “.BRAND” or a “Proper noun i.e a city/country” is the only string that is not “generic” right? The bottom line is that it all depends and you can not have a one size fits all approach. As in my “Music Industry” example illustrates it is pretty clear that a cultural string does necessitate a community to function. However I do agree with you about many non-cultural strings. It would be hard to meet that threshold. I suggest many do take exception to many community-based applications where cultural or linguistic attributes are crucial for their community to function.

          • Zack says:

            Constantine

            Perhaps you should write a blog and take your application through the CPE so that we can all see your reasoning. Frankly, I think music is a generic term that can have many different groups (not communities) under it.

            Zulu, had it applied as a community would have had a shot at getting to 16. Music? I don’t see how you get to 14 ( or even 13). You should expect that some organization that is backing one of these applicants will submit comments).

        • Jacob says:

          Hi Andrew,

          The point is described in the guidebook as being to “identify qualified community-based applications, while preventing both “false positives” (awarding undue priority to an application that refers to a “community” construed merely to get a sought-after generic word as a gTLD string) and “false negatives” (not awarding priority to a qualified community application).” (4.2.3).

          To score 3/3 on nexus you need to explain a ‘match’ to a community’s name, or that it is a ‘well-known short form’ or that it is an abbreviation. Any of these thresholds will suffice.

          Uniqueness is worth 1 point, and the operative phrase, explained in in the definitions is “closely describes without over reaching substantially”.

          Best, Jacob.

      • Kevin Murphy says:

        Costa,

        It’s not my job to give anyone the benefit of the doubt. It’s my job to be skeptical.

        If I’m going to give you the benefit of the doubt then I have to do the same for Far Further, and Far Further has a far, far stronger CPE application than you.

        Kevin

        • Kevin, I do not see the benefit of the doubt even in this case. If you think a more exclusionary application fits CPE then again we are complete disagreement. How can a community application that does not allow DIY artists/fans and legitimate entities not belonging to an association set up after 2007 be stronger and how do such policies score with Nexus and Delineation? They score a zero. Again my opinion. So any new music organization set up after 2007 and their members should not be allowed to register? How is that competitive? Perhaps dig deeper into the Far Further application. .MUSIC is reserved for organizations with members that were formed before 2007. All new competitors, new entrants especially from emerging nations are excluded. But you seem to think it is a “far far” stronger CPE application.

          By excluding legitimate members you “kill” the Nexus and Delineation. Excluding legitimate members is not what one can call a strong community application. It can not be a “far, far stronger application”.

          The main difference between us and Far further is our Eligibility policies. They only allow members of Associations they approve set up before 2007 (which is anti-competitive) and exclude fans/DIY artists or any legitimate entities not belonging to post-2007 organizations. So how is that a “far, far” strong application?

          Our policies in the Launch phase mirror Far Further’s under the MCMO stage i.e there is cross-checking with “accredited” association. The main difference between the two applications is one allows DIY artists/fans and the other only allows members of specific associations set up before 2007 which is anti-competitive. we will allow DIY artists and fans in the last launch phase once all priority artists get their names and we deem it is safe to do so.

          Initially we were going to do cross-checking across the board and this was the initial vision of the .MUSIC community application. We first introduced the MCMO methodology based on crosschecking a few years back which Far Further took as well (they called it GMC). Problem is there is an issue with automating cross-checking across different member databases that are also business proprietary or could violate registrant’s privacy if shared with 3rd parties. We decided to do cross-checking in our third phase called the MCMO phases (with GPML and Sunrise having priority).

          In antithesis to Far Further we do have a Name Selection policy (they allow any name to be registered), a Use policy (only music content – they allow any content), a GPML etc. Again you can compare applications and see we have more enhanced safeguards than they do (https://gtldcomment.icann.org/applicationcomment/commentdetails/11700) but who cares right?

          I have no issues defending our application and why it is stronger. I think if you look at it holistically it does serve the entire music community better and does not create anti-trust issues, privacy/proprietary issues and exclusion issues.

          That said I apologize if you construed my statements to say that your advertisers influence your opinion. I will give you the benefit of the doubt but I would appreciate it if both sides of each story are presented as opposed to another “Roussos loses” article and an anti-community application opinion or that a competitor of mine is stronger when you have not even substantiated that or even dug deep into the issues pertaining to music community applications and being all-inclusive of all legitimate music constituents.

          We are in disagreement but let us leave it there. I apologize for any comments pertaining to journalistic integrity. I certainly hope in that case I was wrong and that also applies to Andrew as well. You have my benefit of the doubt but certainly I have opinions which facts show to be contrary to yours. Interesting that certain facts can be construed differently.

          My 2 cents.

  6. Emperor-in-Waiting Constantine Roussos once again reveals his gift of taking a very complex subject and boil it down to just a few million words! Fear his eloquence!

    He is a true giant who truly represents the true truth and is not afraid to stand up for his opinions which certain facts show to be contrary to being construed differently. He has a supporter for every word he has written, and the bills to prove it. Not since Jeff Williams and his 600,000-person INEG Corporation left the domain name scene have so many done so much for so few.

    When Constantine is Emperor, he will be a thinking man’s autocrat, with libertarian views; fair and magnanimous to righteous communities, and the scourge of portfolio applicants. There will be uniforms, and gold braid, stripes and tassels, brigadiers, swords, and guitars and accordions and drums and coronets and community parades, with diplomas of perpetual justification for all community members. On every anniversary of his coronation he will institute reforms: he will order the guillotines to decked with flowers, and gild and resharpen them out of humanitarian concern. His daughters will be beautiful and his sons will be hairy, and the Religious Icon Association of America (RIAA) will promote his image everywhere and enforce obeisance with righteous lawsuits.

    Kevin and Andrew, stop promoting the Donuts-Directi-TLDH-Google landgrab! You’re sniveling money-grubbing stooges in the pockets of the deep-pocketed anti-community portfolio applicants who betray all journalism with your crass commercial considerations (nothing personal intended). You’re 110% biased from the beginning and do not fully understand the unintended consequences of your actions, scoring only 7 of 16 points in the Journalism Priority Evaluation.

    My 2 doubloons.

  7. c. gonzales says:

    Mr. Rousos is clearly trying to game the system for the music domain, both presenting a trademark that bears no relation to the use case, and by claiming community from a large number of followers that was bought on myspace using affiliate marketing techniques.

    • Gonzales, our social media media campaign did incorporate a combination of both earned and unearned media. So yes it is true. We did “break the wallet” to pay for social media marketing however we did combine it using search engine optimization and other techniques to get the traffic that we did. I think in regards to search marketing the most effective thing to do is a combination of all with SEO being the most important. In regards to gaming the system it is safe to say that getting letters of support by recognized music institutions and writing a strong, multi-stakeholder community-based application with all the enhanced safeguards and IP protections is not an easy feat but I never expect anyone to give myself or my team any credit. We understand most want us to fail. In regards to the trademark we have it to protect all our multi-year efforts in the domain space. We never asked for any special treatment to get the TLD because we have a trademark and never made or will make any statements saying we should be given the TLD because we have one. It is within our legal rights to protect ourselves though and that is just it. It is pretty clear that if you do read the community-based application that it is truly multi-stakeholder with governance by the music community. Let us leave it at that. I think the music community will beb etter served by a community-based application with the right policies and intellectual property protections and be governed in a multi-stakeholder manner. But if many believe it should be auctioned out to the highest bidder as the best solution then it is what it is. It is quite a semantic string and one must understand that adding all these restrictions does impact the bottom line significant. An open .MUSIC will make significantly more than a restricted community-based .MUSIC with all the safeguards. My point has never been about maximizing profits because you compromise the mission and the purpose of the gTLD and creating a quality string not another commoditized domain.

      • Correct me if I’m wrong, but according to the decision, and also the EU TM office website, the .music “trademark” is simply a figurative mark (i.e. for the logo), and is essentially worthless to protect the underlying text:

        http://esearch.oami.europa.eu/copla/trademark/data/008139792

        Trade mark type: Figurative
        Acquired distinctiveness: No

        Interesting to see it was filed by DREYFUS & ASSOCIES, no stranger to the ICANN world.

        Anyhow, other than someone else usurping that specific LOGO (which doesn’t appear to have happened), what “legal rights” do you purport to have that advantage you compared to any other applicant? If you actually had any legal rights, arguing about them in blog comments is not the usual way to enforce them — one goes to the courts for that.

        It reminds me of a great line from the film Reservoir Dogs:

        http://www.youtube.com/watch?v=U0Y7brwz6fA

        “Are you gonna bark all day, little doggy, or are you gonna bite?”

        Indeed, if you know someone is violating your TM, and don’t take action to enforce it, you’d likely end up losing that mark.

        • Hindsight is always 20/20 George. Perhaps monies spent in LROs would have been better invested in European courts to enforce our legal rights appropriately. Let us see how things unfold.

          Perhaps you are right. No more comments from me on blogs since I am such an easy target given my participation and openness for conversation and discussions. Seems not many appreciate the fact that I am open to discuss issues and yes in cases I might be wrong but at least I am open for discussion and pretty transparent. Perhaps I will adopt a “behind closed doors” attitude which seems to serve many (which is contrary to how things should be conducted in an open, transparent way). Will surely serve me better than being transparent and open to dialogue right?

          Best

        • John Berryhill says:

          “Interesting to see it was filed by DREYFUS & ASSOCIES, no stranger to the ICANN world.”

          …and accredited by WIPO to decide LRO disputes. Perhaps the only “unbiased” panelist on the roster, to be sure.

          • …I have a question here:

            There is a employee of IBM (you know, these people who participated in creating the Trademark Clearinghouse) who registered the name of my project “dotvinum” + “.vin” (figurative) + “.wine”.

            What should I think about this?

  8. Scott Pinzon says:

    Constantine, the reason many of us view Far Further’s claim to represent the music community as stronger than yours is because of the global music associations that have lined up in support of them.

    You claim that your community is more “real” because you want to represent DIY and indie musicians. But the reality is, AT LEAST 9 out of 10 indie musicians have no idea that you exist, or (for that matter) that there’s a portion of a domain name called the generic top-level domain. What Mr. Berryhill was getting at in his comments earlier on is that simply asserting you represent all non-associated musicians is not provable…thus, we have to resort to reading the list of defined, incorporated, associated music groups who back each applicant.

    Having social media Likes and Friends and Followers cannot be substantive proof that you represent non-associated musicians. If it is regarded as proof, that means that if someone opens social media protest sites against all .music applicants, and those sites get more Likes and Friends than you and Far Further, you both lose CPE. Obviously the decision about which applicant has community priority will not be made in that way.

    When I joined ICANN in 2009, you were the first applicant I personally met (in a shuttle heading out of the venue in Sydney). I do wish you well but it is wearying when your first line of defense against those who disagree with your reasoning is to smear the person, then the process. I was offended at your comments about Kevin’s journalistic integrity. Your apology was a classier move and appreciated by this on-looker.

    Some of us look at the same facts you do and sincerely reach a different conclusion; it does not have to be any more sinister than that.

  9. Susan says:

    Constantine’s Legal Rights Objection (LRO) to .Music should not have been thrown out. The panel called the .Music Top Level Domain a ” generic designation for a top-level domain.” This is completely bogus! Despite popular opinion, legally the term ‘music’ when used in reference to a Top Level Domain is NOT generic! In Trademark law, a word is only ‘generic’ if the word is merely descriptive of the product or service to be provided. For example, an apple seller could not Trademark the word “Apple” to sell the “Apple” brand of apples, but Apple computers can and HAS trademarked the word ‘Apple’ to sell computers. By the very same logic, the word ‘Music’ does not describe a Top Level Domain. Therefore, according to INTERNATIONAL and US trademark law, the word Music should be eligible for Trademark protection when used as a Top Level Domain. The only words that would not be eligible for Trademark protection for a Top Level Domain would be words like .TLD or .RegistryServices.

    • John Berryhill says:

      “In Trademark law, a word is only ‘generic’ if the word is merely descriptive of the product or service to be provided.”

      Which trademark law would that be, Susan? Perhaps you might tell us what law you had in mind.

      Terms that identify the function or purpose of a product or service may be merely descriptive or generic under 15 U.S.C. 1052(e)(1). Do you think the word “burger” is generic or descriptive of “cooking utensils”? After all a “burger” is not a cooking utensil, now is it?

      Nonetheless, in In re National Presto Industries, Inc., 197 USPQ 188 (TTAB 1977), the proposed mark BURGER was held merely descriptive of cooking utensils. Why? Because they were cooking utensils for use in making burgers.

      The same thing is true in the silly argument that keeps being repeated that “.music” is not generic or descriptive of “domain name registration services”. The very POINT of a “.music” TLD is to provide such services in relation to activities having something to do with music.

      The argument advanced by you, and by Mr. Roussos several times, is like saying the word “SHOES” is not generic or descriptive of “retail sale services”. In the abstract, that’s true. However, you are not going to establish trademark rights in “SHOES” for “retail sale services” and then open a shoe store under that brand and claim that you are the only person on earth entitled to sell shoes.

  10. Susan says:

    Such venom! I am speaking, of course, of one of the basic tenants of Trademark law which – from your response – I can tell that you are very familiar with. However for others who may be curious here is a good description of what the the rules generally are as to what sorts of words are eligible for Trademark protection. http://www.bitlaw.com/trademark/degrees.html and http://law.bepress.com/sandiegolwps-le/art9/

    Your Shoes example, while well presented, is not applicable here in my opinion. In your example, no one could trademark the word ‘Shoes’ for a shoe store because they are selling shoes and you can’t prevent competitors from using the word ‘shoe’ to sell shoes! However, this same thing does not apply to .Music. Your example would only apply if we were talking about .Domains or .Registry services. The word ‘.music’ in no way describes a Top Level Domain or any service associated with a Top Level Domain product or domain name.

    • John Berryhill says:

      Ah, citing case law is now “venom”.

      “no one could trademark the word ‘Shoes’ for a shoe store”

      …which is not the example I proposed. You haven’t addressed the case I cited involving cooking utensils for which the proposed mark was “BURGERS”.

      The proposed “SHOES” mark was for “retail sale services” not for “a shoe store”.

      It is the same problem that Hotels.com ran into when they attempted to assert rights in “HOTELS.COM” for online booking services. An “online booking service” is not a “hotel”. Nonetheless, because the purpose of the service is to book rooms at hotels – regardless of how they characterize the service in their recitation of goods and services – it is merely descriptive.

      Under both US and EU law, generic and descriptive terms remain available for their ordinary meanings, regardless of how someone has characterized the service for the purpose of registration.

      Your point appears to be that ‘.music’ is not descriptive of domain registration services which, if I read the TLD application correctly, seems to have something to do with music. I had not realized that the point of Mr. Roussos endeavors was to operate a TLD for people who want to sell real estate.

      So, let me make sure I understand you correctly. If I register the word “SHOES” for the service of “printing signs”, that would be fine because, obviously, the word “shoes” has nothing to do with “printing signs.” I’m sure we both agree with that.

      On that basis, then I would be able to stop anyone who printed signs for shoe stores with the word “SHOES” on them?

      The sign printing example is precisely analogous to the argument here.

      The application to the circumstances here is, still, one step removed from reality, because neither Mr. Roussos nor his companies possess a trademark registration for the term “.music”, and none of the other TLD applicants have proposed using any of the logos for which he obtained registrations.

      Incidentally, a fundamental principle is a “tenet”, not a “tenant”.

  11. Susan says:

    My point is that words like .blue and .green when used in reference to a Top Level Domain should be eligible for Trademark protection on the basis of the fact that these words are not ‘generic’ or ‘descriptive’ in the sense that they do not describe the good or service being provided. .Registry in reference to a Top Level Domain would not be eligible for Trademark protection. .Skip or .Pink should be.

    You do not seem to disagree with that point. You do not deny that the word ‘music’ does not describe a Top Level Domain. You state that “because if I read the TLD application correctly, (the .Music TLD) seems to have something to do with music. I had not realized that the point of Mr. Roussos endeavors was to operate a TLD for people who want to sell real estate.” Your point – as I understand it – is because the .Music TLD’s target market is related to people interested in music, he should not be able to use the word ‘Music’ to refer to a Top Level Domain and trademark that. I respectfully disagree. That would be like saying that Best Buy couldn’t trademark the words ‘Best Buy’ for a retail store because its customers are only interested in getting the ‘best buy’.

    Your other question about Shoes is a question to which I am sure you know the answer as well. As you know, Trademarks are specific to a specific business class. That’s why we can have Apple Records and Apple computers: the two Trademarks co-exist because they are for separate lines of business. This means that if you were to register the word ‘Shoes’ for the business of printing signs, then you could not stop anyone from using the word ‘Shoes’ on a printed sign or indeed in any other business whatsoever except for selling sign printing services.

    However, on one point you are right. This entire conversation is really academic, because I believe that the .music trademarks were all for the images / logos and not the word.

    • John Berryhill says:

      “Best Buy” was registered on the basis of what is called “acquired distinctiveness” under the Lanham Act. Yes, a descriptive term CAN acquire rights based on longstanding substantially exclusive use.

      Another example is “American Airlines”. Is it American? Is it an airline? Both yes. But the thing is, they’ve been running an airline since 1936 and everyone knows that “American Airlines” refers to them.

      Your “Best Buy” example is neither here nor there in relation to a service which, as we sit here, does not even exist much less has not existed for long enough to make a claim of acquired distinctiveness through use. When you look up their marks at the USPTO you will see the notation “PRINCIPAL-2(F)” That’s because Section 2(f) of the Lanham Act is the part of the statute that addresses terms which are, in fact, descriptive, but have acquired distinctiveness through longstanding use.

      No, “Best Buy” did not waltz in and obtain registration for a service they weren’t even providing. In point of fact, no, they were not able to obtain registration the month after they started using that brand. Under the Lanham Act, a prima facie case could be made after FIVE YEARS of substantially exclusive use.

      Mixing apples and oranges by reference to an irrelevant example doesn’t make your argument any better.

  12. Tony Dag says:

    Constantine’s words [emphasis mine]: “This is why we delineated with COMMON INTERESTS in the “legal distribution and promotion of music.””

    The AGB definition of Community [emphasis mine]: “Usage of the expression “community” has evolved considerably from its Latin origin – “communitas” meaning “fellowship” – while still implying MORE OF COHESION THAN A MERE COMMONALITY OF INTEREST.””

    Hmmmmm

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