The issue of Trademarks 'versus' Domain Names is frustrating and so often confused, especially when the words in the domain are generic. But generally, the more generic the words are, the more likely that the domain owner is not infringing just by owning the domain.
So here is an idea: what if all Trademark applicants were given a notice, as part of the Tradmark application process, that certain domain names were already registered; just a simple factual listing. And then add some legal verbiage explaining who has what rights; including the FACT that a trademark, in and of itself, does not give any rights over a prior domain registration; there has to be some kind of explicit infringement. It would therefore be admissible in court that the trademark applicant had received this notification and was aware of the existing domain registrations.
By making this clearly expressed to the trademark applicant, it would bring more clarity than there is now; and their lawyer would have to justify any action against a domain owner. Some lawyers might lose business, and everyone would have a better understanding.
There is some precedent for this; in the domain industry there is a lot of discussion about trademarks and people often do a lot of search of the trademarks. So we are really saying is that the trademark process should have the equivalent kind of discussion and efforts, regarding existing domain registrations.
Kevin
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