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It is ICANN’s responsibility to make sure domain names do not infringe on trademarks. To determine infringement, ICANN should rely in the short term on predictive models [PDF]. Thus, domain name and trademark owners must start putting pressure on ICANN to assume its trademark responsibility.
Intangible assets such as copyrights and trademarks are created by a single entity and are protected by law. A domain name is a multiblock intangible asset that is assembled from different entities, the way LEGO® blocks are snapped together. A trademark used in a domain name constitutes the first block. The second block is drawn from ICANN, which, through the registries, is able to create an infinitely countable number of unique domain names that a registrant can choose from. The third block is the registrant through domain name use. However, the trademark and the use blocks need not always be present in the asset.
When an entity asks to register a name that includes a trademark, then it has requested the creation of a two-block asset. With registration requests through one of the ICANN-approved registries, ICANN, as a creator of the asset, is responsible for insuring that the asset does not violate any laws.
Multiblock-based similarities can be drawn between Web site mash-ups and domain names. In both cases, someone else creates the building blocks. In mash-ups, it is the responsibility of the Web site creator to ensure proper legality of each component. However, it is much easier to ensure legal content compliance with mash-up Web sites than with domain names, as each block’s copyright restrictions is more clearly stated than in trademark issues inherent in the domain name creation process.
For whatever reason, ICANN has successfully dodged any responsibility for building an asset on top of a trademark block. It is time to meet its responsibilities by disallowing registrations of infringing domain names. However, since a legal definition of infringement is not yet available, ICANN should rely on a predictive model [PDF].
Because the trademark debacle hurts domain name and trademark owners, both groups must start exerting pressure on ICANN instead of taking costly actions against each other.
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It is ICANN’s responsibility to make sure domain names do not infringe on trademarks.
It is ICANN’s job to manage the DNS root. Trademark owners can take care of themselves. If there is any complaint to make about ICANN’s relationship to trademarks, it is that they have been far too deferential to the claims of trademark holders, rather than simply saying that they will follow the directions of appropriate courts.
Even if a model were created, it would seem inappropriate to restrict people’s behaviour because a computer model said it might cause a civil case which you might lose. That is a judgment call for the person making the investment since trademark infringement is not a black and white issue (usually), sure a model that said naming your TLD “coca-cola” will likely cost you X dollars in legal fees (unless you are The Coca-cola Company), might be of some use, but not to ICANN.
If you received the word Viagra in an email, most people and email filters would say, yes. What if you received it through a message from a “friend” on MySpace? The answer is subjective. Does this mean that we should give up detecting spam on social networking sites? No. It suggests that spam filtering on social networks requires a more complex discrimination criterion than “spam” and “not spam.” Similarly, we should not give up on detecting brand infringement. Is it worth it? Yes!
For what it is worth, I don't implement content based filtering on email. The filters I manage don't assume anything about the content of an email because they know nothing of the nature of our users businesses, and we don't want to have to learn everything about every customer in order to correctly filter their email. Likewise brand infringement may be worthwhile, but it isn't ICANN's job. Like my mail filters ICANN don't want to know about every company in the world, and their trademarks, and in what jurisdictions, and for what domain of business, and what agreements exist to share marks. That is the trademark owners problem. Likewise my users are free to apply content based filtering to the email left after we filter it, safe in the knowledge that we didn't reject any email from their mistress because it had the word Viagra in.
ICANN is not the “trademark police”. Judging trademark violations is a highly subjective issue which is always subject to change given new legislation or litigation in any of the countries of the world. ICANN is a technical management organization which should stick to its area of competence.
As Levine and others have pointed out, that’s simply none of their concern.
I am wondering if people sometimes, like me, judge an essay only by its title?