School choice can put some rural districts at risk of losing funds

On a recent Saturday afternoon, the Central High School gym in the small, rural community of Talbotton, Georgia was packed. The Hawks boys basketball team was in the playoffs. Talbot County schools Assistant Superintendent Cynthia Epps said it was kind of a big deal for this community, with a population of about a thousand people. “Basketball games tends to be a gathering … basketball games and churches,” she said. In rural communities across the country like Talbotton, there aren’t many options beyond public schools. And while Secretary of Education Betsy DeVos is a strong believer in school choice, some people in those communities say expanding school choice programs can put rural schools at risk of losing funding. Epps said the public school system is a vital part of this community. It’s one of the largest employers in Talbot County, where one-quarter of the population lives in poverty. And there are no private or charter schools in the district, so it’s the primary education option for most students, many of whom are African-American. “It’s a gateway to getting better,” Epps said. “It’s certainly a gateway here for families and children to be better.” But the district ranks among the worst in the state when it comes to student achievement. That’s led parents like Sher’Londa Walker to look for other options. She sits on the Talbot County commission — it’s independent of the school board. For years, Walker schlepped her kids to public schools with better academic rankings about 20 miles away in a neighboring county.   “It was hectic, but it was worth it,” she said. “I never complained because I was doing what was best for my kids.” “Basketball games tends to be a gathering,” said Cynthia Epps, Talbot County schools assistant superintendent. Above, a Central High School game. Sam Whitehead/GPB State education money followed each of Walker’s kids to that other district. Eventually, she brought her kids — and that money — home to Central High, and said she’s happy to have them here. Georgia pays at least $2,400 for each high school student enrolled in a district, but will pay as much as $14,000 for those who need special services. Walker’s story is unusual in rural Talbotton. Most parents here don't have the means to get their kids into public or private schools in neighboring districts. Republican State Rep. Sam Teasley wants to make changing schools easier. “It is certainly my hope that where there are needs for students to be met, these parents are afforded more opportunities, more choices so that their children can be in a school that fits their family’s needs,” he said. Teasley’s trying to increase school choice by expanding a program that gives up to $2,500 in tax credits to couples who donate to private school scholarship funds. The proposal would increase the cap on those donations to $100 million a year from the state budget to help thousands of students go to private schools. The National Council of State Legislatures says 27 states have some kind of private school choice program on the books. In Georgia, the idea is to divert money from the state budget, which helps pay for public schools, to make private schools more affordable. “Choice sounds like a wonderful thing except when it unfairly disadvantages a particular group or set of people,” said Doris Williams, who studies education for the Rural School and Community Trust. The group says almost 10 million students nationwide are enrolled in rural school districts. Williams said money that goes to school-choice programs often winds up reducing state school budgets, which means less money for rural public schools. Choice programs also pull students from rural districts, which hurts their funding even more. Talbot County schools Superintendent Jack Catrett worries expanding school choice will widen the gap between haves and have-nots. “And it might not be based on race,” he said. “It might be based on socio-economics where it gets back to just poor folks having less and rich folk getting more.” But Catrett’s working to keep that from happening. That starts by getting people to see his small, struggling rural district like he does: as a good school choice.
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Trademarks and Domain Names Composed of Common Terms

The lexical material from which trademarks are formed is drawn from the same social and cultural resources available to everyone else, which includes domain name registrants. Since trademarks are essentially a form of communication, it is unsurprising that a good number of them are composed of common terms (dictionary words, descriptive phrases, and shared expressions) that others may lawfully use for their own purposes. And equally unsurprising, domain names can be identical or confusingly similar to these common-term trademarks. But, whether domain name registrants infringe owners' rights to exclusive use of their terms on the Internet, depends on when the domain names were registered (and if they postdated the trademark, why?) and how the domain names are being used (important only if they postdate the trademark).

One of the differences between applications for trademarks and registrations for domain names is that applied-for marks are examined by a gatekeeper and domain names are not. In the trademark world, rights to particular terms are circumscribed by statutory rules that prevent owners acquiring a monopoly over all but made-up words ("google"). This is done by subdividing goods and services into different classes. Apple Inc., the iconic maker of electronic goods in Class 37, for example, doesn't have a monopoly on the word "Apple". It shares the mark with an Apple Bank (Class 36), an Apple Market (Class 35), and many other APPLE businesses in a variety of different classes, none of which overlap with the goods offered by Apple Inc.

In the cyber world domain names (when not identical to marks) can be composed of a countless number of variations by simply adding, omitting, and reversing letters or combing words. Terms that in the actual marketplace function as trademarks in cyberspace can just as easily (the facts not demonstrating otherwise) be used for their semantic value (<gabs.com>) or be equally as distinctive as trademarks (<zionvpn.com). Cybersquatting is defined by registrants exploiting common term-trademark values (<virgin.ir>, discussed below).

In the "gabs" case, Gabs S.r.l. v. DOMAIN ADMINISTRATOR – NAME ADMINISTRATION INC. (BVI), CAC 101331 (ADReu February 26, 2017) the Panel noted that Respondent has "used the Disputed domain name only within its ordinary meaning." "Gabs" transformed into a trademark informs consumers of the nature of the good or service. "Gabs" the Panel continued

is a common English word based on "gab", meaning "talk, prattle, twaddle" (Concise Oxford Dictionary) and it is used to invoke notions such as "the gift of the gab" and in colloquial words such as "gabfest" and "gabble". It does not strain the language at all to accept that it is used interchangeably as a verb, as in "talks" or "prattles."

Ergo, the GABS Complainant has nothing to complain about because Respondent is not exploiting the trademark value of the common term.

In ZB, N.A., dba Zions First National Bank v. Oneandone Private Registration, 1&1 Internet Inc / John Mike, D2017-0137 (WIPO February 26, 2017) the dispute turns on the dictionary word "zion" in the second level string. But Complainant doesn't own "zion"; it owns several marks with the variant "Zions" as in Zions Direct and Zions Bank. Zion in the singular is a geographic term with historic/cultural and religious connotations but has no meaning in a plural form. There's only one Zion. While Complainant's mark is undoubtedly well-known in the territory in which it operates and for the banking and financial services it provides, ZB, N.A. has no monopoly on "Zion." This is clear from the USPTO database: there's a ZION in Class 12, a ZION REAL ESTATE in 35 and many other "Zion" businesses in a variety of noncompeting classes.

A better argument for cybersquatting could have been made if the added letters "vpn" were banking or finance terms a point amply illustrated in other Zions Bank UDRPs but "vpn" is an acronym for "Virtual Private Network." The Panel notes that

Complainant asserts that "the Respondent's use of Complainant's mark may tarnish Complainant's mark", but fails to deal with the fact that the Respondent is not using the Complainant's mark. Non-use or passive use can certainly constitute bad faith use, but there has to be evidence to support the contention. A problem for the Complainant is that the word "Zion", which appears in the Domain Name, also happens to be a well-known term to which the Complainant cannot claim exclusivity.

Moreover, while Respondent is "responsible for how his Domain Name is being used" here

the use to which it has been put has no obvious connection with the Complainant and given that all the links on that parking page are to VPN-related websites, it appears to the Panel that the VPN element of the Domain Name may in fact be a key element both for Internet users and search engines which undermines the Complainant's assertions as to confusion.

Because ZB, N.A.'s complaint was more "misconceived" than willful it dodged being sanctioned as a reverse domain name hijacker but it undoubtedly overreached its statutory right. Gabs also dodged the sanction, but barely; the third member held the complaint was "a classic Plan B case where a party tries, but fails to buy a domain name and then makes a claim for the same domain name under the UDRP."

Two "virgin" disputes can usefully be cited to round off the discussion of common terms. With the right facts, "virgin" can legitimately be used by others but for respondents to prevail where their choices postdate the existence of corresponding trademarks there must either be insufficient evidence of bad faith or affirmative proof of good faith. Respondent appeared and argued good faith in one (<virgin.ir> and defaulted in the other (<virgin.yacht>). Virgin Enterprises holds trademarks in the U.S. and other countries in a variety of classes but not for Virgin Olive Oil (Class 29) or for Virgin Yachts (Class 12 or 37).

In Virgin Enterprises Limited v. Damon Serji, DIR2016-0036 (WIPO December 31, 2016) (<virgin.ir>) Respondent explained the reason for its choice — "to promote and sell virgin olive oil in the Islamic Republic of Iran" — but failed to explain anomalies in its story including passive holding of the accused domain name. While non-use has been found to support conjunctive bad faith it generally requires the presence of other factors. So what were the other factors in Virgin Enterprises?

The Panel recognized that the domain name "consist[ed] of a dictionary word, meaning unspoiled or untouched." Normally,

in order to find rights or legitimate interests in a domain name based on the generic or dictionary meaning of a word or phrase contained therein, the domain name would need to be genuinely used or at least demonstrably intended for such use in connection with the definition of the term, and not trade off third-party rights in such word or phrase (Paragraph 2.2, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0")).

But here, while "the Respondent did not provide any real proof of use or preparations to use the disputed domain name in connection with the supposedly relied-upon meaning" neither did Complainant "submit[ ] [any evidence] ted to prove that the Respondent traded-off the Complainant's rights in VIRGIN either." However, there was proof that Respondent owned "several domain names, most of which are comprised of generic or descriptive terms related to the food industry, which could lead to believe that the disputed domain name was in fact intended for use in connection with the meaning claimed by the Respondent." Nevertheless (and fatally, at least on this record),

the Respondent has also acquired a significant number of domain names which undoubtedly contain third party trademarks, some of which are famous, such as <ralphlauren.ir>, <primark.ir>, <hogan.ir>, <paulsmith.ir>, <geox.ir>, <beatles.ir>, <reiss.ir>, <orangeblossomwater.com>, <kiricheese.com>, <tildarice.com>, and <ahmadteashop.com>. The Respondent did not provide evidence-supported arguments to demonstrate a fair registration over these domain names, and said domain names act as evidence to demonstrate that the Respondent is aware of third parties' trademarks. (Emphasis added)

The Respondent failed because the totality of evidence undercut his professions of good faith. The Panel simply didn't believe Respondent because his "clear familiarity with the Internet and the domain name system, lead the Panel to infer that the Respondent knew of the existence of the trademark VIRGIN at the time of registration of the disputed domain name, and that it is not likely that the Respondent registered the disputed domain name to sell virgin olive oil, or virgin coconut oil." The clincher was Respondent changed the the website to reflect olive oil "only after having been notified of the Complainant's claims."

The <virgin.yachts>) case is different. Because Respondent defaulted the Panel had a one-sided record. The failure to provide a counter-narrative was tantamount to there being none. The Panel in Virgin Enterprises Limited v. Michelle Meads, Virgin Yachts, D2016-2162 (WIPO March 13, 2017) stated that "there is no evidence in the case record that refutes the Complainant's submissions." Yet, this case is unusual for the reasons noted by Andrew Allemann in Domain Name Wire. He says that he "did a double take when [he] saw this decision" because "n order to register a .yachts domain name, you have to be affiliated with a company in the industry."

Mr. Allemann notes further that there is public information that the domain name registrant is a legitimate company in Florida. In his conclusion, he underscores an important lesson for respondents. Even though "respondent [may have a] legitimate interest in the domain name and probably didn't register it in bad faith" the Panel "accepted" whatever the complainant said. This is too bad because (continuing with Mr. Allemann) "I think it should have been obvious to both the complainant and perhaps the panelist" that this wasn't a cybersquatting case but without a response, whatever the complainant said was "accepted" by the panelist.

He concluded wryly that the Complainant "obviously didn't point out these facts." And why should it have is the underlying and ironic coda.

A Panel's task is to measure the metes and bounds of an owner's rights to marks composed of common terms joined or not with other letters or words. But, as in any dispute unless there is a full record the party with the more compelling narrative prevails even if the Panel may suspect that there is more that could have been established by the losing party.

Written by Gerald M. Levine, Intellectual Property, Arbitrator/Mediator at Levine Samuel LLP

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More under: Cybersquatting, Domain Names, Intellectual Property, Law

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Trademarks and Domain Names Composed of Common Terms

The lexical material from which trademarks are formed is drawn from the same social and cultural resources available to everyone else, which includes domain name registrants. Since trademarks are essentially a form of communication, it is unsurprising that a good number of them are composed of common terms (dictionary words, descriptive phrases, and shared expressions) that others may lawfully use for their own purposes. And equally unsurprising, domain names can be identical or confusingly similar to these common-term trademarks. But, whether domain name registrants infringe owners' rights to exclusive use of their terms on the Internet, depends on when the domain names were registered (and if they postdated the trademark, why?) and how the domain names are being used (important only if they postdate the trademark).

One of the differences between applications for trademarks and registrations for domain names is that applied-for marks are examined by a gatekeeper and domain names are not. In the trademark world, rights to particular terms are circumscribed by statutory rules that prevent owners acquiring a monopoly over all but made-up words ("google"). This is done by subdividing goods and services into different classes. Apple Inc., the iconic maker of electronic goods in Class 37, for example, doesn't have a monopoly on the word "Apple". It shares the mark with an Apple Bank (Class 36), an Apple Market (Class 35), and many other APPLE businesses in a variety of different classes, none of which overlap with the goods offered by Apple Inc.

In the cyber world domain names (when not identical to marks) can be composed of a countless number of variations by simply adding, omitting, and reversing letters or combing words. Terms that in the actual marketplace function as trademarks in cyberspace can just as easily (the facts not demonstrating otherwise) be used for their semantic value (<gabs.com>) or be equally as distinctive as trademarks (<zionvpn.com). Cybersquatting is defined by registrants exploiting common term-trademark values (<virgin.ir>, discussed below).

In the "gabs" case, Gabs S.r.l. v. DOMAIN ADMINISTRATOR – NAME ADMINISTRATION INC. (BVI), CAC 101331 (ADReu February 26, 2017) the Panel noted that Respondent has "used the Disputed domain name only within its ordinary meaning." "Gabs" transformed into a trademark informs consumers of the nature of the good or service. "Gabs" the Panel continued

is a common English word based on "gab", meaning "talk, prattle, twaddle" (Concise Oxford Dictionary) and it is used to invoke notions such as "the gift of the gab" and in colloquial words such as "gabfest" and "gabble". It does not strain the language at all to accept that it is used interchangeably as a verb, as in "talks" or "prattles."

Ergo, the GABS Complainant has nothing to complain about because Respondent is not exploiting the trademark value of the common term.

In ZB, N.A., dba Zions First National Bank v. Oneandone Private Registration, 1&1 Internet Inc / John Mike, D2017-0137 (WIPO February 26, 2017) the dispute turns on the dictionary word "zion" in the second level string. But Complainant doesn't own "zion"; it owns several marks with the variant "Zions" as in Zions Direct and Zions Bank. Zion in the singular is a geographic term with historic/cultural and religious connotations but has no meaning in a plural form. There's only one Zion. While Complainant's mark is undoubtedly well-known in the territory in which it operates and for the banking and financial services it provides, ZB, N.A. has no monopoly on "Zion." This is clear from the USPTO database: there's a ZION in Class 12, a ZION REAL ESTATE in 35 and many other "Zion" businesses in a variety of noncompeting classes.

A better argument for cybersquatting could have been made if the added letters "vpn" were banking or finance terms a point amply illustrated in other Zions Bank UDRPs but "vpn" is an acronym for "Virtual Private Network." The Panel notes that

Complainant asserts that "the Respondent's use of Complainant's mark may tarnish Complainant's mark", but fails to deal with the fact that the Respondent is not using the Complainant's mark. Non-use or passive use can certainly constitute bad faith use, but there has to be evidence to support the contention. A problem for the Complainant is that the word "Zion", which appears in the Domain Name, also happens to be a well-known term to which the Complainant cannot claim exclusivity.

Moreover, while Respondent is "responsible for how his Domain Name is being used" here

the use to which it has been put has no obvious connection with the Complainant and given that all the links on that parking page are to VPN-related websites, it appears to the Panel that the VPN element of the Domain Name may in fact be a key element both for Internet users and search engines which undermines the Complainant's assertions as to confusion.

Because ZB, N.A.'s complaint was more "misconceived" than willful it dodged being sanctioned as a reverse domain name hijacker but it undoubtedly overreached its statutory right. Gabs also dodged the sanction, but barely; the third member held the complaint was "a classic Plan B case where a party tries, but fails to buy a domain name and then makes a claim for the same domain name under the UDRP."

Two "virgin" disputes can usefully be cited to round off the discussion of common terms. With the right facts, "virgin" can legitimately be used by others but for respondents to prevail where their choices postdate the existence of corresponding trademarks there must either be insufficient evidence of bad faith or affirmative proof of good faith. Respondent appeared and argued good faith in one (<virgin.ir> and defaulted in the other (<virgin.yacht>). Virgin Enterprises holds trademarks in the U.S. and other countries in a variety of classes but not for Virgin Olive Oil (Class 29) or for Virgin Yachts (Class 12 or 37).

In Virgin Enterprises Limited v. Damon Serji, DIR2016-0036 (WIPO December 31, 2016) (<virgin.ir>) Respondent explained the reason for its choice — "to promote and sell virgin olive oil in the Islamic Republic of Iran" — but failed to explain anomalies in its story including passive holding of the accused domain name. While non-use has been found to support conjunctive bad faith it generally requires the presence of other factors. So what were the other factors in Virgin Enterprises?

The Panel recognized that the domain name "consist[ed] of a dictionary word, meaning unspoiled or untouched." Normally,

in order to find rights or legitimate interests in a domain name based on the generic or dictionary meaning of a word or phrase contained therein, the domain name would need to be genuinely used or at least demonstrably intended for such use in connection with the definition of the term, and not trade off third-party rights in such word or phrase (Paragraph 2.2, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0")).

But here, while "the Respondent did not provide any real proof of use or preparations to use the disputed domain name in connection with the supposedly relied-upon meaning" neither did Complainant "submit[ ] [any evidence] ted to prove that the Respondent traded-off the Complainant's rights in VIRGIN either." However, there was proof that Respondent owned "several domain names, most of which are comprised of generic or descriptive terms related to the food industry, which could lead to believe that the disputed domain name was in fact intended for use in connection with the meaning claimed by the Respondent." Nevertheless (and fatally, at least on this record),

the Respondent has also acquired a significant number of domain names which undoubtedly contain third party trademarks, some of which are famous, such as <ralphlauren.ir>, <primark.ir>, <hogan.ir>, <paulsmith.ir>, <geox.ir>, <beatles.ir>, <reiss.ir>, <orangeblossomwater.com>, <kiricheese.com>, <tildarice.com>, and <ahmadteashop.com>. The Respondent did not provide evidence-supported arguments to demonstrate a fair registration over these domain names, and said domain names act as evidence to demonstrate that the Respondent is aware of third parties' trademarks. (Emphasis added)

The Respondent failed because the totality of evidence undercut his professions of good faith. The Panel simply didn't believe Respondent because his "clear familiarity with the Internet and the domain name system, lead the Panel to infer that the Respondent knew of the existence of the trademark VIRGIN at the time of registration of the disputed domain name, and that it is not likely that the Respondent registered the disputed domain name to sell virgin olive oil, or virgin coconut oil." The clincher was Respondent changed the the website to reflect olive oil "only after having been notified of the Complainant's claims."

The <virgin.yachts>) case is different. Because Respondent defaulted the Panel had a one-sided record. The failure to provide a counter-narrative was tantamount to there being none. The Panel in Virgin Enterprises Limited v. Michelle Meads, Virgin Yachts, D2016-2162 (WIPO March 13, 2017) stated that "there is no evidence in the case record that refutes the Complainant's submissions." Yet, this case is unusual for the reasons noted by Andrew Allemann in Domain Name Wire. He says that he "did a double take when [he] saw this decision" because "n order to register a .yachts domain name, you have to be affiliated with a company in the industry."

Mr. Allemann notes further that there is public information that the domain name registrant is a legitimate company in Florida. In his conclusion, he underscores an important lesson for respondents. Even though "respondent [may have a] legitimate interest in the domain name and probably didn't register it in bad faith" the Panel "accepted" whatever the complainant said. This is too bad because (continuing with Mr. Allemann) "I think it should have been obvious to both the complainant and perhaps the panelist" that this wasn't a cybersquatting case but without a response, whatever the complainant said was "accepted" by the panelist.

He concluded wryly that the Complainant "obviously didn't point out these facts." And why should it have is the underlying and ironic coda.

A Panel's task is to measure the metes and bounds of an owner's rights to marks composed of common terms joined or not with other letters or words. But, as in any dispute unless there is a full record the party with the more compelling narrative prevails even if the Panel may suspect that there is more that could have been established by the losing party.

Written by Gerald M. Levine, Intellectual Property, Arbitrator/Mediator at Levine Samuel LLP

Follow CircleID on Twitter

More under: Cybersquatting, Domain Names, Intellectual Property, Law

Posted in circleid | Tagged , , , | Comments Off on Trademarks and Domain Names Composed of Common Terms

Sophomore Jinx ?

Dominic Belley who I interviewed last year around this same time, detailed his second year in the business with a post on Namepros. Dominic points out that year 2 was not as good as his rookie season. By detailing his second year he does newcomers a great service in my opinion. Here is his post: […]

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03/27/17: “When America sneezes, the rest of [the world] catches a cold”

Why markets worldwide are down following Congress's failure to repeal and replace Obamacare. Then, a new survey reveals that credit card holders are generally successful when they ask to negotiate rates and waive fees. And Sabri Ben-Achour interviews journalist Jason Koebler about why farmers are fighting John Deere policies by hacking their tractors.
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