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Re: The current Trademark License Agreement is unacceptable



On Thu, 27 Aug 2009, Luis Villa wrote:
> In the meantime, it is silly to talk about shutting down your domain
> or 'extinguishing community' because of this agreement. If you're
> using the Fedora mark in a domain name, Red Hat/Fedora can already
> take it from you via ICANN. They're virtually guaranteed to win that
> case.

Well, you might be correct for the US, the generic Top Level Domains
(gTLDs) and maybe some international Top Level Domains (ccTLDs), but
luckily the world is a bit more complicated.

ICANN, that means you are talking about the UDRP (Uniform Domain-Name
Dispute-Resolution Policy) [1]. Not all TLD registries use UDRP at all,
so there's a list at ICANN [2] for approved providers.

When now looking explicitly to *.de where according to IANA (doing as a
kind of department of ICANN the technical business for them) the DENIC eG
is responsible [3], there are interesting FAQs at the DENIC eG website.

First is "Why is there no Dispute Resolution Procedure (like ICANN's UDRP)
at DENIC?" [4], second is "What can I do if I believe that I have a better
right to a domain than its current holder?" [5] and the third is "DISPUTE
Entries" [6].

If you don't want to read these FAQs, the short form is, that you have to
win your suit against the current domain name owner in Germany at a German
court, otherwise DENIC eG won't give you the defendant domain name. Support
by DENIC eG is only offered via a "DISPUTE" to avoid changes at the given
domain name owner (in front or during the lawsuit).

And as already explained before [7], a trademark (Fedora is a registered
trademark in the European Union, but not in Germany) or a company name, is
not necessarily a reason to win a suit at a German court [8]. A proof that
things can work without ICANN UDRP is e.g. the domain name fahrplan.de [9].

Did I mention, that it could make bad press, if Red Hat suits a longtime
Fedora Contributor and owner of a German domain name related to the Fedora
Project just in order to get and hold that Fedora Project related German
domain name?

Conclusion: If I ever find a plaint by Red Hat regarding a Fedora Project
related German domain name in my postbox, two of our "Fedora f"s are a lie.


References
----------

[1] http://www.icann.org/en/udrp/udrp-policy-24oct99.htm
[2] http://www.icann.org/en/dndr/udrp/approved-providers.htm
[3] http://www.iana.org/domains/root/db/de.html
[4] http://www.denic.de/en/faq-single/450/1/248.html (English)
    http://www.denic.de/faq-single/450/1/248.html (German)
[5] http://www.denic.de/en/faq-single/373/248.html (English)
    http://www.denic.de/faq-single/373/248.html (German)
[6] http://www.denic.de/en/domains/dispute.html (English)
    http://www.denic.de/domains/dispute.html (German)
[7] http://www.redhat.com/archives/fedora-advisory-board/2009-August/msg00162.html
[8] BGH, Urt. v. 11. April 2002 - I ZR 317/99 - OLG Muenchen - LG Muenchen I
[9] http://www.heise.de/newsticker/data/ad-02.12.99-001/ (German)


Greetings,
  Robert

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