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New Book on Domain Name Regulation

My book, "The Current State of Domain Name Regulation: Domain Names as Second Class Citizens in a Mark-dominated World" is now available by Routledge.

The following is an overview of the book:

* * *

Questions concerning the legality of domain names have never received the kind of attention they deserved; in all truth, the attention has perpetually focused on the harm trademark owners are enduring through the use of domain names. Early domain name regulation indicates that Internet policies highlighted the threat — potential and actual — domain names were posing to trademarks and any amendments on such policies proceeded on the basis that trademark protection should be more robust and rigorous. The promulgation of ICANN's UDRP is one such example; it was justified on the face of the need for trademark protection on the Internet and was substantiated on the way domain names impair the value of trademarks. To the present day, domain name policies and trademark regulations are still developed, structured and arranged using justifications of trademark protection.

I strongly refute this assertion. Trademark protection on the Internet is vital; it is equally vital, however, to rationalize the pragmatic considerations of this protection. We have spent time and resources debating and streamlining on the impact of cybersquatting on trademark law, completely disregarding how trademark lobbying has manipulated the authority of Internet institutions (ICANN) and has pressured for policies (UDRP and IRT) seeking to expand the conceptual basis of trademark law. Ten years ago we missed the window of opportunity to formalize the legal nature of domain names and, consequently, strike a balance between the competing interests of trademark owners and domain name registrants.

My book — "The Current State of Domain Name Regulation: Domain Names as Second Class Citizens in a Mark-Dominated World" — re-opens the discussion on the state of domain name regulation, questioning the legitimacy of its intellectual, institutional and ethical structure. The timing for this kind of discussion could not have been more appropriate as ICANN is venturing into new policy with the launch of its new gTLDs programme and intellectual property lobbying is — once again — seeking to direct policy-makers into areas that stretch the philosophical basis of trademark law.

In the book I promote the thesis that the determination and recognition of domain names as autonomous, sui generis, rights is intellectually imperative, because it is through this intellectual conjecture that we will end in modifying the current status quo. Using the theory of property as my starting point, I discuss issues of ownership (dominium) and sovereignty (imperium). My argument centres on the concept of the 'bundle of rights' and how it has evolved to denote ownership over tangible and intangible assets; it does not seek to dispute the theory of the 'bundle of rights', rather I accept it as property's contemporary variant. For me, the metamorphosis of property law is occurring at regular intervals and, currently, it encompasses both tangible and intangible assets that can be associated with such a 'bundle'. This description, however, can have a negative impact on property — the clearest example being trademark rights - one that Morris Cohen identified in his visionary 1927 article when discussing the dangers of the concepts of dominium and imperium being conceptually blurred.

With this understanding of property in mind, I then proceed to display trademarks and domain names. I discuss the systematic effort of the trademark community to canonize trademark protection (Progressives movement) and demonstrate the importance of trademarks as property commodities. However, I also acknowledge that attributing property characteristics does not grant immunity to trademarks, the same way that property does not grant immunity to any right. Trademark law operates under limitations and restrictions (for instance, territoriality, genericness and free speech), which ensure the smooth function of the market and allow entrepreneurship to flourish.

On the contrary, such needs are not preserved through the presence of trademarks on the Internet. There is a great amount of conceptual vagueness and legal presupposition on the kind of protection trademarks should receive in the domain name space. Such an attitude ignores emerging questions concerning the nature of domain names, their relationship with trademarks and their online importance. The truth is that these questions are so complex that American courts are split and seem unwilling to create a blanket rule on how law should treat domain names.

In such a vague environment, the UDRP plays a major role and contributes significantly to this legal cul de sac. Although politics within ICANN have compromised attempts to produce a fair process, the UDRP was meant to be a harmless policy, with a specific subject matter and limited to cover only a very small fraction of trademark infringement. At the time, no one anticipated the UDRP to transcend traditional trademark law and become an online international 'soft law' establishment. Nowadays and with a massive body of case law, which shows signs of exponential growth, ICANN's policy is considered as the dominant platform for trademark vs. domain name resolution.

The UDRP, however, is far from an authoritative statute; its genesis was based on illegitimate grounds, its procedures are substantially flawed and unfair, it restricts the rights of domain name registrants and it is crowded with examples of inconsistent and biased decisions. Its subject matter has been extended to cover almost every trademark infringement issue on the Internet, disrespecting the traditional and long-standing principles of trademark law, often granting unsanctioned international protection to trademark owners, suppressing free speech and disintegrating the legal rights of domain name registrants. In short, trademark interests have managed to excommunicate legitimate domain name registrants and entrepreneurs.

This degree of substantial and procedural unfairness poses an ethical problem for domain name regulation. My thesis is to build a framework for domain names — the "domain name polis" as I call it — where fundamental principles of justice, like fairness, equality and lawfulness, hold a prominent position and direct any amendments on the Policy towards respecting these ethical ideals.

The latest proposal by ICANN's Implementation Recommendation Team (IRT) makes the creation of this framework even more important. Suggesting policy that re-defines the conceptual parameters of trademark law, the IRT advocates the success of the UDRP, does not recognize any of the intellectual legal challenges and consciously dismisses the unfairness that is taking place.

It is, therefore, important for scholars and intellectuals to reopen the discussion on the conceptual boundaries of trademark law, revisit its limitations and parameters and refine the state of domain name regulation.

By Konstantinos Komaitis, Senior Director, Policy Development and Implementation, Internet Society – The views and opinions expressed here are those of the authors and do not necessarily reflect those of ISOC or its position. Visit Page

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Comments

What about Incorporated companies? and other issues By Virendra Gandhi  –  Jun 19, 2010 4:51 pm PST

This is an excerpt of a write up on what I am working on.
The Cloud Computing Platform will allow User URL of TLDs to register for the Number ID. It 'will' allow users to have multiple ID’s”, but wont allow cyber squatting nor allow other than the owners of incorporated companies to register. The cyber squatting of names of incorporated companies, would have to be regulated hopefully with the co operation of ICANN and/ or the Registries of various Top Level Domains.

The legal aspects for Privacy concerns of this service will be governed by the laws of the land of that country/countries involved by virtue of the usage by user and or provider.

Hacking into a computer, cell phone or any other device will be considered a VBE Virtual Breaking and Entering offence. This will be a start to bring about International Laws to co ordinate and control such crimes like Hacking, destroying/ altering data, defacing, or accessing illegally business databases for profit, using this service to commit crimes.
Othe than names these are issues which needs to be looked into.

Could we argue that your title reverses By Ken Ryan  –  Jun 25, 2010 6:35 am PST

Could we argue that your title reverses the truth - that Marks are Second Class Citizens in a Domain Name Dominated World?  Very few trademarks are unique while domain names under any TLD must be and, despite a decade of introducing potential alternatives, one TLD is entirely predominant for (US) commercial entities on the Internet. 

There are over 100 US trademarks that include my last name - 9 that consist only of the 4-letter name.  One percent of the companies with a 'legitimate' trademark right can register the domain name ryan.com - doesn't that disadvantage 99% of trademark owners?  The limitation is based on Internet naming constraints, not trademark rights.

True it is this very naming constraint By Virendra Gandhi  –  Jun 25, 2010 8:27 am PST

True it is this very naming constraint that needs to be dealt with immediately with an out of the box thinking and work on allowing multiple users to have the same Name/ID. Of course with privacy concerns kept in mind. TLDs should have an alternative preferably through a TLN or if not via a conventional TLD based Social networking service, the John Smith problem has to be solved and at the same time help enable common standards for cloud computing.

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