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It'sAlreadyTaken.com

By Wendy Rickard
editor@isoc.org

On 6 March 1997, Rebecca and Steven LaBlance, owners of Bonny View Cottage Furniture in Petoskey, Michigan, made history when they registered bonnyview.com with Network Solutions, Inc. (NSI). That registration represented the one-millionth active Internet domain name registered by NSI within the .com, .org, .net, .edu, and .gov domains registries. The event may have been a watershed moment in the history of the commercialization of the Internet, but it's not going to do much to quell the anxiety levels of the domain-name deficient, many of whom already feel out of the Interloop. The pressure is on. Yahoo! and Alta Vista results pages splash advertising banners for domain-name registration services. The copy is friendly but urgent: Reserve your domain name of choice now, before it's gone forever.

According to a release by NSI, "Just 18 months ago there were 120,000 active domain names; a year ago that number had climbed more than 306,000." Today, Network Solutions registers an average of 3,000 names daily. The United States may be adopting the Internet for business purposes faster and more furiously than the rest of the world, but the problems that are arising-now that domain names are recognized as commodities-are global. Names are intellectual property. If it can squeeze between http://www and .com or .co.uk or some other TLD, it may have a value that can lead you to-or land you in-court. Unfortunately, when DNS was developed, this problem wasn't even imagined.

The proposal by the International Ad Hoc Committee (IAHC) to add seven new TLDs, though challenged on many grounds, may ultimately be remembered by Internet historians more for its attempt to organize and administer the Internet than for its specific recommendations-many of which will be moot anyway in 50 years. What's driving the need to administer the Internet in this fashion is the persistent rearing of intellectual property's ugly head. As the IAHC's executive summary points out, "A complicating factor [of the requirement for enhanced assignment procedures] is that the human-friendly quality of domain name strings has also made them commercially valuable." In other words, the Internet is much like any organic system: when 198.62.73.42 becomes www.trademark.com, entropy sets in.

In all aspects of society (of which the Internet is now a member-see Nick Trio's article on page 11) entropy is usually followed by policy making. On 28 July 1995, NSI formally acknowledged the need to address the increasing number of legal disputes involving domain names and trademarks by announcing a domain-name policy, which was then amended on 23 November 1995. Although the policy confirms the basic first-come, first-served rule with respect to the registration of domains, it makes an attempt to prevent the pirating of trademarks or service marks of other parties (see ftp://rs.internic.net/policy/internic/internic-domain-4.txt). As Mark Radcliffe, partner in the Palo Alto office of Gray Cary Ware & Freidenrich, writes in a document called "Do You Own Your Own Name in Cyberspace?" (http://www.gcwf.com/articles/yourname.htm), "No one needs to own a servicemark or trademark to register a domain name. No domain name registrant will be challenged unless and until a third party complains to NSI and supplies appropriate evidence of ownership of a trademark that is identical to the challenged domain name."

Much of the debate on the subject focuses on resolving disputes that arise over the ownership of domain names. Policies vary from country to country, but overall they are intended to absolve the registries of legal liability if a dispute arises. A useful document put together in 1996 by Geoffrey Gussis, a law student at Washington University of Law, called Global Top-Level Domain Dispute Resolution Policies (http://www.digidem.com/legal/domain.html), serves as a comparative review of domain dispute resolution policies, illustrating how different countries are dealing with trademark issues and domain names. Forty-nine countries are featured in the study and it makes for some interesting reading.

A quick review of a few of those policies reveals a trend toward granting domain names to entities that can, in some way, lay claim to the names being registered. In Lichtenstein and Switzerland, for example, a portion of the policy reads: "Submission of a domain registration constitutes warranty to CH/LI DOM-REG that entity has rights to use the submitted name, i.e. entities statements in the application form are required to be true and entity is required to have the right to use the Domain Name as requested in the application." Others, such as the policy of Luxembourg, are little more than liability statements ("RESTENA cannot be held liable for any naming conflict with existing organizational names, abbreviations, acronyms, etc."). A few interesting tidbits show up, however, such as the duplication of policies by Ireland and Bulgaria: "The holder of a domain name shall indemnify Digital Systems Company and its servants or agents and shall hold Digital Systems Company and its servants or agents harmless from and against any loss, damage, liability, claim or expense resulting from a claim or claims asserted by a third party regarding ownership of or right to use the domain name in questions."

Given that companies in the United States have been quicker to stake out their territories in cyberspace, the problem of the diminishing pool of .com domain names is more deeply felt. A article posted on the Web by Richard P. Klau, a recent graduate of the University of Richmond T.C. Williams School of Law, reports that the number of domain names is growing by 60,000 per month. "At this rate," he writes, "the number of domain names in 1996 will triple the number registered in 1995, which was more than quadruple the number of domains registered in 1994."

For the thousands, or even millions, of companies doing business worldwide, it shouldn't be necessary to become experts in DNS or law or intellectual property in order to be successful in the information age. Public policy, a spirit of cooperation, and sophisticated technology should be working for businesses, not driving them into courtrooms to defend their rights to use their names in cyberspace.

Although we need some short-term solutions to the overwhelming demand for DNS entries, we should not be blindsided into believing that the evolutionary train of Internet technology has stopped at the DNS station. Business identities need not be finite in an era that promises near-limitless possibilities. Instead we need to move toward a system wherein domain names are irrelevant; a time when a company name or some other identity would transparently link to the proper cyberlocation through a sophisticated directory system.

The impact of communications technology on cultures, businesses, and lifestyles worldwide will continue to challenge our capacity to adjust to the new systems that evolve. What good will the Internet do for businesses if businesspeople are afraid there's not enough room on the ship or that their seat will be taken by someone else who happens to have the same name. It's nice to know the numbers but in the words of Albert Einstein, "Not everything that can be counted counts, and not everything that counts can be counted."

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