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Domain Names as Second-Class Citizens

Milton Mueller

A new book by Dr. Konstantinos Komaitis (Lecturer in Law at the University of Strathclyde) provides a passionate yet legalistic and well-researched overview of the legal, institutional and ethical problems caused by the clash between domain names and trademarks. This is really the first decent book-length treatment of what is now a decade and a half of legal and political conflict between domain name registrants and trademark holders. But this is more than a static compilation and description of the subject: Komaitis has an original and fundamentally important argument to make.

In his view, domain names are a form of property, and the property rights held by domain name registrants need to be recognized in law — independently of, and carefully distinguished from, the limited rights associated with trademark protection. Komaitis shows that under the institutional regime that has evolved since 1998 (in which ICANN and US law play leading roles), domain name registrants are not afforded normal property rights. Due to the political power of the trademark lobby, their rights are subordinated to trademark protection and their property rights recognized only insofar as they have no impact on trademarks. Hence the book's subtitle: domain names are "second-class citizens in a mark-dominated world." The author makes a convincing case that this is not the appropriate state of affairs, so we need to rethink the way we approach the laws and rights pertaining to domain names.

This argument is carried out very systematically. Komaitis starts at the beginning, taking up the theory of property and reviewing the legal debate over whether domain names are property or "service contracts." He then proceeds to discuss the history, legal basis, procedural aspects and performance of ICANN's Uniform Domain Name Dispute Resolution Policy (UDRP). There is an interesting discussion of the differences between what we normally think of as arbitration and the UDRP, which poses as an arbitral process. As one might expect, most of the differences have the effect of weakening the rights of registrants, binding them to a procedure and rules while allowing the complainant more choice and options. He goes on to critique the procedural justness of the UDRP and the contradictions of the U.S. Anticybersquatting Consumer Protection Act (ACPA), with its in rem jurisdiction that erases the territoriality of trademark protection. There is a chapter on the interaction between domain name regulation and freedom of expression rights. He concludes by showing how "the same mistakes" are being repeated and even reinforced by a trademark interest-dominated "implementation review team" (IRT) which developed in reaction to ICANN's new top level domains initiative.

Komaitis's take on domain name regulation is definitely worth reading. On the downside, the writing style of this non-native English speaker is a bit complex at times (although, oddly, it improves in later chapters). One can only wonder whether the Routledge series that published the volume gave it the editorial attention it clearly deserved. There are also some minor mistakes in the author's understanding of DNS technology; several times the author says that ICANN enforces domain name judgments by "altering the registrant's information on the 'A' root," which is not how it works (actions deleting or reassigning second-level domains are taken at the TLD registry, not at the root zone file). But this has no impact on the legal argumentation.

By Milton Mueller, Professor, Georgia Institute of Technology School of Public Policy
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Whatever Komaitis’s legal argument Virendra Gandhi  –  Aug 12, 2010 7:39 PM PDT

Whatever Komaitis’s legal argument, Domain Names are on a first come first served basis. My knowledge of trademark is half baked, but to me trademark is art work and not registration of the Name/word. There was this case I heard of a person who wanted to trademark the word Cyber long after it was in use for a long time and the attorney was all for it, anyway that didn’t happen (this was to prevent others to use the word cyber). This kind of ownership disputes are going to go on and on till the Namespace problem is solved and with it the rights to ownership.

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