Wikipedia:Reference desk/Archives/Humanities/2019 June 27

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June 27

Using trademarks as domain names.

If you make a website where the domain name matches a trademark, can that company shut down your website, if your website is not at all about that trademark character? (Example: lesser-known character from a video game or cartoon). 67.175.224.138 (talk) 00:18, 27 June 2019 (UTC).

This is called cybersquatting. What the trademark owner can do depends on the country you are in. In the united states this is governed by Title 15 of the US Code §1125(d). In brief, maybe. Actually, it might be okay even if your website is about the character. The analysis is complicated, and depends largely on whether you are intending to profit off of confusion. There is also a whole other complicated section of law on whether you as the website registrant can sue the domain registrar for voluntarily handing your website over to the owner of the trademark. So the best answer to your question is, "maybe, maybe not, depends on the circumstances." This is the sort of question that gets argued in courts for years, so we certainly can't give a straight answer to it. I'm sure though, you could dig up court decisions on similar issues, as well as law review articles discussing the various factors involved. Someguy1221 (talk) 00:38, 27 June 2019 (UTC)

Actually, I was going to say, the trademark holder is not at all interested in buying the domain name, so there is no cyber-squatting. Example: there are over 800 pokemon, and their trademark holder is not interested in purchasing all the domains, and having them forward to a main domain name. Cybersquatting imo, is purchasing a domain before the trademark owner purchases it and then offering to sell it to them rather than giving it for free. But my question is now the trademark just simply wants to shut down the website without wanting the domain name itself. 67.175.224.138 (talk) 00:46, 27 June 2019 (UTC).

There is no requirement in law that the trademark-holder intends to use a specific website for the registrant to be considered an infringer. As for whether your intended website infringes on trademark or qualifies as cybersquatting in a particular scenario is a question that would be settled by a court, and you would need to get advice from actual lawyers, not random people on the internet. We very specifically do not give legal advice. You could also contact whoever owns the trademark and ask them directly. Someguy1221 (talk) 01:34, 27 June 2019 (UTC)

Okay, that 1st sentence answers a question, if I understand it correctly, wants to shut down a trademark-website even if no intent of even having a website, yea? In that case, imo the law will almost always favor the trademark-holder. I suspect a lot of websites in a trademark name are up because the trademark-holder chooses to not shut it down. Obviously, if the trademark is a common word like apples and oranges, then they can't win in court. But as for trademarks that aren't common words, 1 example I can think of is there's a candle pokemon called Litwick. There's also a website of that name, which seems to be a legit candle-making company. I suspect the Nintendo company could shut it down, if it wanted to. And this would also be for cases if website name predates the trademark? Perhaps that candle-company had that website name before the trademark name even was patented, and they could still lose in court. 67.175.224.138 (talk) 02:13, 27 June 2019 (UTC).

A good general overview of IP law questions like these might be found in Roger Schechter and John Thomas, Intellectual Property: The Law of Copyrights, Patents and Trademarks (West Hornbook Series 2003). Sadly that appears to be the most recent Hornbook on the subject. More extensive treatises and practice guides would be Thomson Reuters' Trademark Practice and Forms (updated 2019), and McCarthy on Trademarks and Unfair Competition (5th ed. updated 2019). You may be able to find these resources at a local law library, or get electronic excerpts from a law librarian. Respectfully, these questions are getting a little too close to a request for legal advice for my comfort, and I don't think we should answer anymore. —/Mendaliv/^2¢/_Δ's/ 02:33, 27 June 2019 (UTC)

(edit conflict)Short answer: It depends. In the U.S., see the Anticybersquatting Consumer Protection Act. Bear in mind that this question comes close to a request for legal advice and so I am going to refrain from giving a thorough breakdown. I echo Someguy1221's recommendation that you check out some law review articles. —/Mendaliv/^2¢/_Δ's/ 00:52, 27 June 2019 (UTC)

Couldn't this be a bunch of contradictions? Especially across different jurisdictions in the U.S.? For example, suppose someone made an atheism website in a trademark cartoon characters name. Some lawyer could cite 1 case law where it a court-case won and favored, in 1 jurisdiction, and then, in anothr jurisdiction, someone can cite another case law where the court didn't favor the trademark. Wouldn't case laws be full of this? 67.175.224.138 (talk) 02:29, 27 June 2019 (UTC).

And what about for cases where the courts knew the law favored the trademark, but chose to not enforce it, so the trademark party loses. And the party appeals, still loses in court. Now can that false-case law even be case law? 67.175.224.138 (talk) 02:37, 27 June 2019 (UTC).

You should take a look at this general overview of how cybsersquatting cases are decided. That page includes links to other resources, including relevant case summaries. Someguy1221 (talk) 02:49, 27 June 2019 (UTC)

Regarding 67.175.224.138's comment on Litwick: at least in the USA, it depends. See Burger King (Mattoon, Illinois) for an example. Someone founded a restaurant in Mattoon and called it Burger King and filed a state trademark, and some years later the nationally recognized chain with a national trademark came into Illinois. Lanham Act litigation between the two resulted in the national company being able to use the trademark in Illinois, but since the Mattoon people had used the trademark first, they were considered to have "prior use". The result of this decision was that the Mattoon people could continue operating under that name (they were still running a few years ago when I ate there), and the national chain may not operate in the Mattoon area without permission from the local restaurant. Now, how the law would be applied in this particular case would require a lot of work by a lawyer, but the general principles have researchable history, and there are some situations in which you would be allowed to use a term if your use predated the trademark. Nyttend (talk) 03:21, 27 June 2019 (UTC)

Weird how the small company sued the big company 1st, and did it in state court rather than federal. But yea, the big Burger King originated in Florida, opened it's 1st Illinois location after the small 1, but that's pretty interesting how the federal court allowed the small 1 just to restrict them from that small area. But I agree with the federal court that Burger King was a nation-wide trademark and not a Florida-wide trademark, so it seemed pointless for the smaller Burger King to file suit in a state court. 67.175.224.138 (talk) 04:45, 27 June 2019 (UTC).

It's a lot more complicated than that. First off, state court is way, way cheaper than federal court. Second, they're an Illinois business, they're going to prefer to sue an out-of-state corporation in Illinois courts. Third, there may have been weird jurisdictional issues suing in federal court at that time. And fourth, their lawyer might not have been able to handle federal litigation. What's interesting though is why they didn't bring the Lanham Act challenge in state court. I'm reasonably sure that's possible. Though to be fair BK probably would have removed those claims to federal court immediately. In fact, that may explain the split; the Hootses might have been able to defeat diversity jurisdiction somehow, and bringing the Lanham Act claims in state court would have made the whole case removable under supplemental jurisdiction. That said, it feels like res judicata would have barred Lanham Act claims if Hootses lost its state trademark claims. So I don't know. Complicated. —/Mendaliv/^2¢/_Δ's/ 06:25, 27 June 2019 (UTC)

There is one more point that I don't think has been mentioned. A trademark generally only applies to a specific field of business: see Apple Corps v Apple Computer. So a domain not used for any topic relating to a company's trademark might be considered non-conflicting. However, big companies and organizations may take an expansive view of what fields their trademark relates to: see Olympic symbols#Intellectual property. So not only is this not legal advice, even if it was it might not be safe to follow. --76.69.117.113 (talk) 19:23, 27 June 2019 (UTC)

The Olympics are a very special case: They have an explicit statutory grant of use rights in federal law that probably supersedes all inconsistent state common law trademarks. See 36 U.S.C. § 220506. You could honestly call it a "supertrademark". —/Mendaliv/^2¢/_Δ's/ 20:06, 27 June 2019 (UTC)

Although even there, prior use is protected. A person who actually used, or whose assignor actually used, the words or any combination of the words described in subsection (a)(4) of this section, or a trademark, trade name, sign, symbol, or insignia described in subsection (c)(4) of this section, for any lawful purpose before September 21, 1950, is not prohibited by this section from continuing the lawful use for the same purpose and for the same goods or services. And companies in western Washington engaging in business unrelated to the Games can be named "Olympic"; see Olympic Mountains, Olympic National Forest, Olympia, Washington, etc. Nyttend (talk) 22:39, 27 June 2019 (UTC)

The Lancet's claim

The Lancet recently marked Taiwan as a province of People's Republic of China [Reference ] when it is not.

Although it wrote back to the readers soon with the provided explanation This paper follows the guidelines and protocols of the United Nations and World Health Organisation, which reference Taiwan as a province of the People’s Republic of China. This makes the study consistent with other international health analyses. Unless and until such guidelines and protocols are changed, there are no plans to alter such references to Taiwan. The paper was written with the scientific rigor and thorough data analysis required by editors of The Lancet. A hierarchical analytical model was employed, utilising empirical data sources that include all available and relevant vital and civil registration, census information, scientific literature and other information. The Lancet stands behind this study and its robust estimates of health in China.

Do you think the Lancet's reason make sense? --It's gonna be awesome!✎Talk♬ 18:47, 27 June 2019 (UTC)

Yes. Nanonic (talk) 18:56, 27 June 2019 (UTC)

Yes. Up to now, Taiwan still do not claim being a separate country, but rather the true legitimate China. A Taiwan independence movement exists, but this is considered a danger, as PRC "stated, or implied" this move is a Casus Belli, and nobody wants war. Gem fr (talk) 19:10, 27 June 2019 (UTC)

I often wonder: what would the PRC say if, rather than declaring independence for the former province of Taiwan, the ROC were to grant independence to each of the other provinces? —Tamfang (talk) 18:53, 3 July 2019 (UTC)

That suggests that the Taiwan viewpoint is that the PRC is a province of Taiwan rather than the other way around. So either way the Lancet's version doesn't sound like it would sit well with them. 173.228.123.207 (talk) 05:24, 28 June 2019 (UTC)

When you write "Taiwan viewpoint", you use a figure of speech (land=government) which make thing harder to understand. You should use ROC viewpoint. On both side of the strait, Taiwan is just a province of the whole China. In Taiwan the ROC rules, and still consider itself (not the PRC) the legitimate government of the whole China, which include Taiwan. And pretty much all other governments disagree with the ROC, starting when then recognized Mao's government and assigned the UN seat of China to PRC, turning Taiwan an official province of the PRC still under ROC control. It is not uncommon that 2 governments, each controlling part of the territory, claim to be legitimate on the whole. What is less common is for the situation to be 70 years old. Gem fr (talk) 08:08, 28 June 2019 (UTC)

One will find that the people of Taiwan believe themselves to be separate from the Chinese. I used to attend an ex-pat Chinese Community Club on a regular basis, and while there was a large Taiwanese community in town and were always invited they never attended, not one, and their explicitly stated reasoning was that they are a separate people from the mainland Chinese. They did attend the Club as access was granted to them but held their own meetings and functions and did not invite any of the local Chinese to any of these meetings. Further to this the South African Government had relations with Taiwan to run knitting factories in the 1990's. This indicates that there is a political divide in place allowing relations with one as being separate from the other although this may be very subtle. All of the people shipped in to run these factories were Taiwanese and not Chinese. There is an international divide as to whether or not Taiwan is separate from China. China claim they are one and Taiwan claim, though quietly, so as to ensure that they do not need to go to war with their much larger counterpart, that they are distinct. This is akin to the Myanmar / Burma question or the Kashmir question, and the Israel Palestine problem. Many different countries take different views on who the land belongs to etc. Ultimately, the people on the ground at grass roots level in Taiwan believe themselves to be a distinct people. Anton 81.131.40.58 (talk) 09:33, 28 June 2019 (UTC)

see Taiwanese identity about this. Methink this would had been easier in 1949, bc UN rules of self-determination basically demands that, if a province wants to separate and turn into a new state, it must be so, and we would have had 2 states (pretty much as there were 2 Germany), and PRC would have had to recognize the independence. Much more complicated now. Gem fr (talk) 17:31, 28 June 2019 (UTC)

Except that Taiwan/ROC didn't want to "separate and turn into a new state", it wanted the PRC government to go away and give them back the mainland territory. --76.69.117.113 (talk) 02:23, 29 June 2019 (UTC)

Indeed. Gem fr (talk) 08:35, 29 June 2019 (UTC)

If the lancet follows WHO protocols consistently, it makes sense. I means the paper can avoid getting caught making political decisions, and just use an other organisation's political decisions instead. As long as it is consistent, it works. Their job is not to decide where a border lies, but to report on health, and so they just need someone else's system, and use that someone else's border lines. --Lgriot (talk) 12:43, 28 June 2019 (UTC)

Why are people talking like this is Lancet's decision? The above quote suggest it was probably primarily a decision made by the authors of the study. Sure The Lancet could have refused to publish the study in the form it's in, but I'm confused why people are treating this as a primarily something Lancet did. Nil Einne (talk) 17:21, 28 June 2019 (UTC)

I assume it's partly because The Lancet chose to publish the material in Facebook. It really should make little difference, but the perspective shifts a little bit. Someone reading The Lancet would see a paper where so-and-so claimed X (and attribute that choice to the author), whereas someone reading Facebook would see that The Lancet said X (and attribute that to the journal itself). Heck, I don't even see the author's names on the post, so how else would you attribute it? Matt Deres (talk) 18:33, 28 June 2019 (UTC)

Well someone at Lancet clearly choose to publish that statement. But the statement but it's just explaining what the paper does and why and how that interacts with Lancet's editorial decisions. The statement clearly says "this paper" etc. No where does it suggest the decision was made by the Lancet. It doesn't say anything like "we" or "the Lancet" etc except in references to stuff like "stand behind this study" which would seem to me to just be an indication they still feel that the study met their standard for publication not that they are the ones who decided how to carry out the study or whether Taiwan should be listed as a province of China. It would seem to me anyone with a basic understanding of scientific publishing should understand what is being said. (I mean I can understand why people on Facebook or in the general media may make the mistake but while I know this isn't the science RD, but I don't think research in the humanities is that different is it?) I have no idea why you would need to know names the authors of the paper to attribute something to them. It's not like you know who the editorial board of the Lancet is from that statement yet people are still attributing things to the Lancet. Nil Einne (talk) 15:26, 30 June 2019 (UTC)

China is a large, powerful, important country however you wish to define those terms. China claims Taiwan is a renegade province without legitimacy. Taiwan claims it is self-governing in all senses of the word, and the only reason the world won’t accept that basic truth is that China is powerful. None of the above changes anything: Taiwan is not part of the People’s Republic of China, it never has been and if the vast majority of the people on that island have their way, it never will be. DOR (HK) (talk) 15:57, 3 July 2019 (UTC)

US Congress and counties

I was surprised to learn from Quillehuyte County, Washington that Congress prohibited the Washington territorial legislature from abolishing one of the territory's counties in 1865. Quoting the source:

"Eleven years later by act approved January 14, 1865, Skamania county, which by that time had been greatly reduced in size, was divided between Clark and Klickitat counties with provision that the Skamania county officers cease their functions on April 1, 1865. This act was disapproved by Congress in an amendment to the Organic Act on June 29, 1866, and Skamania county reappeared on the scene."

This phrase has a citation to "U.S. Congress, 3-1, Session Laws, 1865-66, p. 82".

Were there any other instances of Congress prohibiting the creation or abolition of a local government by a territorial legislature? Until reading this, the only county-creation-or-abolition acts of Congress were a complete prohibition on Alaska Territory having counties at all (but as far as I know, that was a general thing based on low population density, not something that overruled the legislature's action on a specific county) plus assorted acts related to DC government (e.g. Washington County, D.C.). And what about other local governments, e.g. forming or abolishing specific municipalities? Again, no idea except for organizing the cities of Washington, Georgetown, and Alexandria, D.C.

In case someone wonders, I'd like to put this into the Skamania County article, but I'd like to be able to say that it was a unique incident or that it was one of ___ incidents in US history. Nyttend (talk) 22:59, 27 June 2019 (UTC)

It should be noted that this was only legally possible because Washington was a territory and not a state at the time, the Federal Congress has no such authority when it comes to the organizing of state counties. The closest example I can think to your question is maybe Greer County, Texas, but that really isn't the same.--Jayron32 12:55, 29 June 2019 (UTC)

I'm not entirely sure you're right that they have no authority to do that sort of thing to the states. Considering Reynolds v. Sims declared the apportionment of state senate seats by county to violate the Equal Protection Clause, were a state to insist that its counties be state senate districts, they would have to apply redistricting to them periodically as they do with their other congressional districts. If there were another Equal Protection reason to do so, I would think the feds could absolutely demand a state change the way its counties were structured. —/Mendaliv/^2¢/_Δ's/ 18:58, 29 June 2019 (UTC)