Yes, that's right. You can't register a company name if there is an already
existing business name (I can't remember if the test requires that the 2 be
identical or merely similar) on the books in any state or territory.

Trade mark rights are a very separate thing and unfortunately are not taken
into account in the company or business name registers.

In response to previous postings, I think that a problem many people are
having conceptualising the UDRP is that all commentators tie it so closely
to trademark concepts. I know this has confused me for some time until I
concluded that, while the UDRP draws on TM concepts, to tie it entirely to
TM law is misleading. There is the obvious link that the policy is
predicated on TM (or some other) rights and the "identical or confusingly
similar" test borrows from trademark law.

However, at that point I believe the UDRP diverges and perhaps shouldn't be
though of in trademark law terms. To take one example, the UDRP has been
interpreted liberally to (in effect) not actually require "use" by the
registrant. This is because most cybersquatters warehouse domain names and
don't really "use" them according to a common-sense interpretation - if
"use" was interpreted strictly the policy would be unworkable in many
instances. In trademark law "use" by a trademark infringer is imperative.

Similarly, the test of whether one TM is confusingly similar to another
operates quite differently in TM law to under the UDRP. At first blush, I
couldn't understand why domain names that looked very different to existing
trade marks were being transferred to the complainant (eg. the Yahoo!
typosquatting decision). This is obviously because in the context of the
internet and the fact that users mistype domain names, typosquatting does
become confusing. So, I think the policy as it is written is being
appropriately applied in this sense because in an internet context
typosquatting is often confusingly similar and there is also probably bad
faith.

Whether or not the policy is correct in this scenario is another thing.
Unless "bigpons"is somehow passing itself off as "bigpond"I am not sure what
is wrong with this form of opportunism -- if a user can readily realise when
they've gone to a site that it is not bigpond, they'll re-type the domain
and try again.

As for the "sucks" cases I believe that the UDRP has been interpreted
wrongly by the arbitrators. How a "trademark" + "sucks" can be "identical or
confusingly similar" under the wording of the UDRP is beyond me. Everyone
was quick to applaud the wallmartcanadasucks arbitrator for finding in
favour of the registrant -- however, a quick read of his decision shows
references to the US anticybersquatting act (what is the relevance of this
under the UDRP?) and general comments about free speech in domain names. The
UDRP is intended to be a territory neutral alternative to the courts - it
can't be hijacked by arbitrators applying their own domestic law to the
policy. As anyone knows, US rights and concepts of free speech are very
different to ours in Australia. Of course, the irony was that 2 or 3 days
after the wallmartcanadasucks decision was handed down a US court held that
there are no free speech in domain names.

(see DOMAIN NAMES DON'T HAVE FREE SPEECH  PROTECTION
A judge in New Hampshire has found that domain  names are
for navigation rather
than communication. As non-communicative  speech, domain
names are not
eligible for protection under the US  Constitution. Critics
claim the judgment
underestimates domain names and  removes free speech
defences from trademark
disputes on the Internet. A  recent article on a related
topic discusses
whether "spam" commercial speech is  protected.
http://www0.mercurycenter.com/svtech/news/breaking/merc/docs/026011.htm

http://www.gigalaw.com/articles/morris-2000-12-p1.html )

-- where does this leave the basis to the wallmartcanadasucks decision?

The appropriate action in the "sucks" case I believe is court action if the
trademark holder really wants to shut the site down - the UDRP is being
misapplied.

Regards,
John

----- Original Message -----
From: "David Keegel" <djk&#167;cyber.com.au>
To: <dns&#167;auda.org.au>
Sent: Friday, December 15, 2000 3:03 AM
Subject: Re: WIPO and spelling of Domain Names.


> ] My understanding is that ASIC will accept any name for registration
(other
> ] than some names on "prohibited" type list) unless it is identical to one
> ] already registered.  ASIC does not undertake trade mark searches and
leaves
> ] rival claimants to resolve the matter themselves.
>
> I agree that the company name space and the trade mark name space are
> not connected.  But I believe there is some connection between the
> company name space (ASIC) and the business name space (state govts),
> and that ASIC checks state business names before registering a company
> name.  So there is more to it than just a prohibited names list.
>
> Victorian Business Affairs make it clear that registering a business
> name does not give you any trade mark rights, and that you should do a
> a trade mark search to see if you might be infringing some one else's
> trade mark.
>
> __________________________________________________________________________
>  David Keegel <djk&#167;cyber.com.au>  URL: http://www.cyber.com.au/users/djk/
> Cybersource P/L: Unix Systems Administration and TCP/IP network management
>
> --
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>