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Whois Trademark Plans Stall

Plans by Internet provider Verio Inc. to trademark the term "Whois" have hit a roadblock at the U.S. Patent and Trademark Office.

On Tuesday, trademark examiners rejected the Colorado-based ISP's appli cation for a service mark on Whois in a notice of non-final action. While Verio (VRIO) has an opportunity to respond within six months. Glenn Beaton, an attorney for the ISP, said Verio is likely not to pursue the application further.

Colorado-based Verio applied for the mark in July 1999 in hopes of getting trademark protection on its domain name Whois.net under the domain dispute resolution policy then in use by Network Solutions (NSOL) .

"With the prevalence of cybersquatting and trademark piracy, I think a company is well advised to get whatever rights available to its names," Beaton said.

Whois is a term used by numerous sites and software packages for performing look-ups on the database of domain registrations maintained by Network Solutions.

David Loundy, an Internet attorney with D'Ancona & Pflaum in Chicago said that because Whois is a generic term, the Trademark Office's ruling on Verio's application was the correct one. "It should crash and burn it's so clearly unenforceable a claim of protection," Loundy said.

Verio assumed the Whois.net registration as part of its acquisition of TABnet in 1998 and currently offers a domain look-up service at the address and at Whois.org. SilkRoute Ventures in Singapore has owned Whois.com since 1995, according to Internic records.

Verio's application for a registered trademark on the name Whois.net was rejected in October 1999. The logo on the company's look-up page nonetheless bears the "sm" service mark indicator because the company believes it has common-law rights to the name, according to Beaton.

Verio's strategy of applying for trademarks on its domains was generally sound under the old NSI dispute policy, which gave trademark holders superior rights in conflicts over a domain name. But under the Uniform Dispute Resolution Policy adopted by the Internet Corp. for Assigned Names and Numbers in October of 1999, trademarks will no longer automatically trump prior use of a domain, according to Loundy.

Beaton said Verio hadn't decided whether to enforce the Whois mark against all users or just instances involving Whois.net.

"That's an issue we obviously hadn't confronted yet, but it appears to be a moot point now."



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