Domain Names and Trademarks-The Unhappy Marriage Continues but the Rules Are Clearer

By McNamara, Brian; Go, William | Journal of Management Information and Decision Sciences, January-July 2001 | Go to article overview

Domain Names and Trademarks-The Unhappy Marriage Continues but the Rules Are Clearer


McNamara, Brian, Go, William, Journal of Management Information and Decision Sciences


INTRODUCTION

What's in a name? In cyberspace the answer is simple--MONEY. "Dot-com is the 800 number of the 1990s," said Chris Elwell, vice president of internet.com--a domain that Mecklermedia bought last month for more than $100,000. "I wouldn't be surprised if they go for over a million dollars in a few years," referring to the skyrocketing price of domain names [1].

In order to find a website you need an address, and the simpler the address the better. Mankind craves simplicity, so the idea of short and quick names is not a recent "cyberspace phenomena." By way of example, Champion Sparkplugs became "AC Sparkplugs," shoulder pork all meat is "spam," and REO Cars actually stood for Ranson E. Olds, the father of Oldsmobile.

To understand the importance of a domain name, one must understand that the domain name is the "key" that unlocks the website. A key that is too long and bulky in today's world could mean the visitor will just go on to the next door with easier access. This simple "truth" of cyberspace and human nature is that it did not take long to generate a new world of speculators who have invented the world of "cyber-squatting."

Making money as a cyber-squatter seems too easy. What about the law? Does it have anything to say on the business of registering and selling domain names? In order to understand its legality one must first examine what a domain name is and then review how traditional trademark law fits into the equation.

DOMAIN NAMES

The technical aspects of domains names are as follows: A domain name is a unique address and each domain name is divided into fields separated by periods. It is made up of an IP network address and a local address. Together both parts make up the Uniform Resource Locator (URL) that is used to identify the location of some interface on the Internet. An alphanumeric domain name usually consists of two levels: a Second Level Domain and a Top Level Domain. For example, the Whitehouse's website, http://www.whitehouse.org/ the Second Level Domain is "whitehouse" and the generic Top Level Domain (TLD) is ".org." The http:// refers to the protocol used to transfer information, and the "www" simply refers to the World Wide Web.

TOP LEVEL DOMAIN NAMES

Each domain name has three levels. The first is known as the top-level domain name. This is the last part of the URL. In our above example this would be COM. Currently there are several offerings in this regard and are as follows: .com, .web, .rec, .arts, .info, .store, .firm, and .nom. The problem here is that .com was the leader and it will remain indisputably the "Fifth Avenue" address [2].

With the addition of these new ".coms" offerings, the potential for new names has expanded exponentially. The question then becomes does Amazon.com have to register Amazon.Web, Amazon.firm, etc. as a defensive measure to protect the quality and value of the original Amazon.com [3]. These names are distinctive but do they sufficiently distinguish from the original trademark to satisfy trademark law?

As it stands the International Ad Hoc Committee (IAHC) has failed to address the issue of customer confusion over www.wal-mart.com and www.wal-mart.store. Moreover, in the alternative can a cyber squatter be able to purchase www.wal-mart.store if and when it becomes available exercising priority over other potential purchasers? [4]

The Patent and Trademark Office in its Examination Guide N0. 2-99 PTO specifically states:

   When a trademark [or] service mark ... is composed, in whole or in
   part, of a domain name, neither the beginning of the URL
   (http://www.) nor the TLD have any source indicating significance.
   Instead, those designations are merely devices that every Internet
   site provider must use as part of its address. Today,
   advertisements for all types of products and services routinely
   include a URL for the web site of the advertiser. … 

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