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domain name conflicts
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Date: Fri, 19 Apr 1996 13:58:27 -0400
From: Carl Oppedahl
Three graduate students at the Georgetown University Law School
(David Pauker, Stacey Halpern, and Jonathan Agmon) have prepared what is
surely the definitive and comprehensive resource covering Internet domain
name disputes provided, appropriately enough, in the form of a
topic-specific web site. The site, called "What's in a Name?", is located
at
Who should visit this site
For anybody who has a domain name ending in COM, ORG, GOV, EDU, or NET, this site is a must-read. It illustrates vividly how vulnerable any domain name owner is to loss of a domain name on just 30 days' notice, without any of the usual legal safeguards against loss of a valuable property right.
What's there
It will be apparent to any visitor that the "What's in a Name?" web site is the result of a prodigious amount of effort. The authors have drawn together nearly everything about the twenty-five publicly known domain name disputes, and provide a synopsis of each dispute as well as links to further information about them. (Because Network Solutions Inc. (NSI) conducts its decisionmaking process regarding domain name disputes in secret, one can only speculate how many other domain name disputes have arisen and how NSI decided the disputes. The authors can't be blamed for not knowing about all of the dispute decisions that NSI has made.)
The authors go on to provide helpful background to trademarks and domain names, they discuss in detail the present NSI domain name policy, and they review a number of proposed replacements for the present flawed NSI policy.
As counsel for Roadrunner Computer Systems Inc. in its lawsuit against NSI, I was particularly interested in the authors' comments on the present NSI policy, for example:
"In the United States, NSI's Dispute Resolution Policy does not take account of common law or state registered trademarks, unfair business practices, dilution, or conflicts with even well known marks.
"NSI's Dispute Resolution Policy is an imposed contract predicated on unequal bargaining power, failing to provide a proper mechanism for adjudicating disputes.
"NSI, a private company, is acting in a quasi-judicial manner with limited mechanisms for judicial review."
"NSI's Dispute Resolution Policy still allows the owner of a federally registered trademark to receive relief not dissimilar to a preliminary injunction -- placing the domain name on hold during the pendency of the litigation -- without having to demonstrate any of the substantive requirements of a preliminary injunction, such as irreparable harm, a likelihood of success on the merits, or even posting a bond. Instead, the owner of a federal trademark can force NSI to place a domain name on hold simply upon proof of federal trademark registration." (http://www.law.georgetown.edu/lc/internic/introd1.html)
What will happen next
One can only hope that what will follow is informed debate regarding the manner in which domain name disputes get decided. In the past, NSI's process of development of its domain name policies has taken place in secret, providing special relief to trademark owners to the detriment of domain name owners. In future, domain name owners need to play an active part in informing themselves about the NSI policy and the legal and fairness issues surrounding domain names. Ideally, NSI would for the first time take into account the interests of domain name owners in formulating a replacement policy. The "What's in a Name?" web site will be an invaluable resource for this debate.
David Pauker, Stacey Halpern, and Jonathan Agmon deserve the thanks of the Internet community for their hard work in assembling this important web site.
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Carl Oppedahl, oppedahl@patents.com Oppedahl & Larson, patent law firm http://www.patents.com/ is a web server with frequently asked questions and answers on patent law and other intellectual property subjects ```
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