Thu Apr 09, 1998 09:43:14 AM moderator_joseph_l:Testing, testing: Welcome! We are talking about domain names. Please feel free to join in at any time.

Thu Apr 09, 1998 10:05:14 AM diane_c:I thought the hypothetical was a difficult one, it had more to do with NSI authority than with IP

Thu Apr 09, 1998 10:05:53 AM moderator_joseph_l:yes, the authority of NSI is a bit troubling. what do you think about that? (we might as well get started ...)

Thu Apr 09, 1998 10:06:38 AM robert_y:Well, the DNS was designed without trademarks in mind, so it doesn't deal well with them.

Thu Apr 09, 1998 10:07:33 AM moderator_joseph_l:that is certainly true. it seems, though, that domain names are increasingly being used as trademarks, hence the conflicts, etc.

Thu Apr 09, 1998 10:07:58 AM moderator_joseph_l:do you think the two systems can be reconciled?

Thu Apr 09, 1998 10:08:09 AM robert_y:An authority like the NSI is need though when you view a domain name as strictly an address: It would be a nightmare if your town had two main streets, with duplicate house numbers, etc.

Thu Apr 09, 1998 10:09:09 AM diane_c:NSI has nothing to do with that. They only deal with the memnonic overlay of the IP numbers. It's the IP numbers that keep each machine separate

Thu Apr 09, 1998 10:10:12 AM moderator_joseph_l:The NSI maintains the "root" directory for the ".com" and ".org" domains.

Thu Apr 09, 1998 10:10:22 AM diane_c:We do have duplicate streets and house numbers. Trademark law recognizes duplicate names and permits them also. I don't think NSI should be making any judgments based on trademark.

Thu Apr 09, 1998 10:10:30 AM robert_y:Understood, but *nobody* uses direct IP addressing, so for all intents and purposes, the mnemonic *is* the address.

Thu Apr 09, 1998 10:11:19 AM diane_c:True, and your point is?

Thu Apr 09, 1998 10:11:58 AM robert_y:We need a mnemonmic based addressing scheme?

Thu Apr 09, 1998 10:12:43 AM diane_c: :-) You were saying we needed a root authority. I'm saying it doesn't have to be based on trademark principles

Thu Apr 09, 1998 10:12:51 AM robert_y:Where do you have duplicate house numbers/streets in the same city?

Thu Apr 09, 1998 10:13:51 AM diane_c:We might have X Road, X Street, X Lane, etc. and that's just about as confusing as 3com.com, 3com.org, 3com.net

Thu Apr 09, 1998 10:14:34 AM moderator_joseph_l:But aren't domain names *in fact* being used like trademarks? I see them all the time in advertising, etc. (e.g. "amazon.com")

Thu Apr 09, 1998 10:14:37 AM diane_c:confusing in the trademark sense

Thu Apr 09, 1998 10:15:01 AM robert_y:Personally, the only solution I can envision is two-fold: One is to use very specific names (for embedded links in pages) like Tide.Proctor.Gamble.com (more)

Thu Apr 09, 1998 10:15:15 AM diane_c:Is the phone number they give being used in the trademark sense?

Thu Apr 09, 1998 10:15:38 AM moderator_joseph_l:Some phone numbers are: 1-800-holidayinn, etc.

Thu Apr 09, 1998 10:15:40 AM robert_y:and the second is an official Yahoo-like referral service so that if I typed Tide and it was unambiguous, it would go to a site that declared Tide as it's address.

Thu Apr 09, 1998 10:16:57 AM diane_c:You get the Yahoo response now (except it doesn't retrieve simply domain addresses of that name)

Thu Apr 09, 1998 10:17:49 AM robert_y:That's the difference. It would have to actually "leap" to the site if it was unambiguous (i.e., only one possibility) or present a menu of choices if there are multiples.

Thu Apr 09, 1998 10:17:53 AM diane_c:Robert, you're proposing a solution for finding the correct party, but I don't think that necessarily solves the trademark confusion issue

Thu Apr 09, 1998 10:19:20 AM robert_y:But it follows the same logic used today for trademarks: An argument given for defending duplicates is that they are separate use. If the menu popped up Tide (detergent) and Tide (automobile tires), you could argue that there's no confusion.

Thu Apr 09, 1998 10:20:04 AM diane_c:I think the only solution is a definitve court decision holding that URL's are simply location addresses. How do you know that Tide tires aren't made by Tide detergent manufacturer?

Thu Apr 09, 1998 10:20:15 AM robert_y:Touche! :)

Thu Apr 09, 1998 10:20:32 AM diane_c:I love a good loser!

Thu Apr 09, 1998 10:20:45 AM moderator_joseph_l:how would the trademark analysis apply, diane? likelihood of confusion? dilution?

Thu Apr 09, 1998 10:20:59 AM diane_c:Come again?

Thu Apr 09, 1998 10:21:29 AM moderator_joseph_l:in the Tide example, how do you think a court would rule. for example, if tide.com were registered by a company making tires?

Thu Apr 09, 1998 10:21:48 AM robert_y:Wouldn't the only reasonable domain name then be the manufacturer name?

Thu Apr 09, 1998 10:22:17 AM moderator_joseph_l:the manufacturer being proctor & gamble or the tire manufacturer?

Thu Apr 09, 1998 10:22:44 AM diane_c:You've seen decisions all over that issue. I think courts have trouble with a uniform "reasonable consumer" standard, viz. there isn't a uniform one.

Thu Apr 09, 1998 10:23:50 AM robert_y:Well here's a proposal: How about a qualified domain name scheme where the base is the manufacture, with the lowest level qualifier being the brand (as in Tide.procter.gamble, Palmolive.Procter.Gamble, etc.) (more)

Thu Apr 09, 1998 10:24:35 AM robert_y:This would allow the "products" to be deliniated by manufacturer - the only trhing missing is a quick way to get there...

Thu Apr 09, 1998 10:24:36 AM diane_c:There can be six legitimate manufactuers with the same name, Macdonald's lumber, macdonald's burgers, etc. You just have to go to the website and find out.

Thu Apr 09, 1998 10:25:12 AM diane_c:Just as you would have to do in the phone book (unless there was a handy logo printed nearby)

Thu Apr 09, 1998 10:25:31 AM robert_y:Hmm....

Thu Apr 09, 1998 10:25:57 AM diane_c:And nobody wants to type out URL's that are that long. You can't even get people to register on the .us TLD registry because you have to include the city and state in the url

Thu Apr 09, 1998 10:26:17 AM robert_y:Agreed, that why my caveat...

Thu Apr 09, 1998 10:26:53 AM robert_y:So what is the current situation regarding phone numbers, surely they've had this problem already?

Thu Apr 09, 1998 10:27:01 AM diane_c:Why not have first come, first serve. The website itself will have to pass the test of whether or not it is confusing to the consumer.

Thu Apr 09, 1998 10:27:17 AM diane_c:Decisions both ways on the 1-800-flowers type of thing

Thu Apr 09, 1998 10:28:08 AM robert_y:Figures, since the response has been similar to NSI's: more prefixes (888 and 887).

Thu Apr 09, 1998 10:28:53 AM robert_y:The problem with the first come first serve is that it opens the door to greenmailers.

Thu Apr 09, 1998 10:29:09 AM moderator_joseph_l:Yes. what about warehousing domain names? e.g. if i register "kodak.com" and sit on it?

Thu Apr 09, 1998 10:29:18 AM moderator_joseph_l:or seek payment?

Thu Apr 09, 1998 10:29:30 AM moderator_joseph_l:like a lot of domain name "brokers"

Thu Apr 09, 1998 10:29:48 AM diane_c:What if you opened an office park and called it "macdonald's"

Thu Apr 09, 1998 10:30:07 AM robert_y:I'd be sued by McDonalds! :)

Thu Apr 09, 1998 10:30:17 AM moderator_joseph_l:many office parks can be called "macdonalds" but there is only one macdonalds.com (under the current system)

Thu Apr 09, 1998 10:30:33 AM moderator_joseph_l:like real estate, location, location, location

Thu Apr 09, 1998 10:30:44 AM diane_c:But why does that make things different, just because there is only one?

Thu Apr 09, 1998 10:30:59 AM diane_c:It just makes it more valuable

Thu Apr 09, 1998 10:31:17 AM moderator_joseph_l:concurrent use is not technically possible, at least now. whereas in the real world, it is.

Thu Apr 09, 1998 10:31:37 AM moderator_joseph_l:both by geography and by type of business

Thu Apr 09, 1998 10:31:42 AM diane_c:Aren't we agreed that if two competing owners of valid federal trademarks both wanted the same .com, that first-com, first-served should get it?

Thu Apr 09, 1998 10:32:36 AM robert_y:The problem is how you as a person find things in the real world, and how we *must* map that somehow into the e-world.

Thu Apr 09, 1998 10:33:47 AM diane_c: "finding" things in the e-world is done more by browsers and metatags than by URLs

Thu Apr 09, 1998 10:34:44 AM robert_y:I would agree, but one of the joys of the internet is the direct access to the sources. The manufacturer, not the broker.

Thu Apr 09, 1998 10:35:48 AM moderator_joseph_l:thomas, what do you think about all of this? any thoughts, general comments?

Thu Apr 09, 1998 10:37:09 AM robert_y:How _do_ people use the internet?

Thu Apr 09, 1998 10:38:21 AM robert_y:Hello?

Thu Apr 09, 1998 10:38:32 AM moderator_joseph_l:How do people use the internet _today_? It seems to me that people's habits are very much still up in the air and subject to change

Thu Apr 09, 1998 10:38:44 AM diane_c:I would argue that a URL/domain name alone is insufficient to sustain an action for trademark infringment. Speaking of infringment, David Loundy says you've copied one of his webpages onto your server (the second of his two references in your REsources Commentary section). Bad boys, bad boys. The first one is just linked, though.

Thu Apr 09, 1998 10:39:23 AM diane_c:He's thrilled, of course.

Thu Apr 09, 1998 10:39:41 AM moderator_joseph_l:im relieved to hear that :).

Thu Apr 09, 1998 10:39:47 AM robert_y:Manufacturers use it to promote their products, hence the desire for easily found locations...

Thu Apr 09, 1998 10:40:12 AM diane_c:I wonder if the fact that technology changes so fast would mitigate against any use of a "reasonable man" standard?

Thu Apr 09, 1998 10:40:41 AM moderator_joseph_l:interesting thought. what would be the alternative? the reasonably tech-savvy user?

Thu Apr 09, 1998 10:40:56 AM diane_c:The techno-retard?

Thu Apr 09, 1998 10:41:03 AM moderator_joseph_l:heheh. sign me up.

Thu Apr 09, 1998 10:41:44 AM moderator_joseph_l:but what about robert's point that short domain names are useful to consumers

Thu Apr 09, 1998 10:42:04 AM moderator_joseph_l:much better than remembering an ip address (e.g. 203.123.432.12 etc)

Thu Apr 09, 1998 10:42:38 AM diane_c:well, I'm wondering whether that's a legal issue?

Thu Apr 09, 1998 10:42:52 AM diane_c:Front row seats are useful, too'

Thu Apr 09, 1998 10:43:37 AM moderator_joseph_l:hmm. yes, perhaps more of a policy issue, although the law may influence whether short domain names are widely used

Thu Apr 09, 1998 10:43:54 AM moderator_joseph_l:trademarks are useful because they reduce consumer search costs

Thu Apr 09, 1998 10:44:05 AM moderator_joseph_l:and trademark law therefore protects them

Thu Apr 09, 1998 10:44:05 AM diane_c:By the way, I thought Fisher's history of IP in the US was great!

Thu Apr 09, 1998 10:44:31 AM robert_y: (re: law/short domain names) How? I see it more as a personal preference...

Thu Apr 09, 1998 10:45:01 AM diane_c:how IP has evolved from a grant of the king to a property right.

Thu Apr 09, 1998 10:45:46 AM moderator_joseph_l:so, personal preference in that it is up to the person registering the domain name?

Thu Apr 09, 1998 10:47:08 AM robert_y:With the end user in mind of course, but I'd rather use "Toyota" than "ToyotaTrucks" for example. Both are possible, but the common usage would be the first.

Thu Apr 09, 1998 10:48:11 AM robert_y:Hmm.. Things have gotten slow around here. Responses take a while to show up, etc.

Thu Apr 09, 1998 10:48:11 AM robert_y:Is it me, or has your system bogged down?

Thu Apr 09, 1998 10:48:27 AM moderator_joseph_l:drawing on your tech background, would it be possible to implement a new domain name structure along the lines you suggested earlier? and how difficult would it be to implement?

Thu Apr 09, 1998 10:48:34 AM moderator_joseph_l:hmm. my system is doing okay

Thu Apr 09, 1998 10:48:43 AM robert_y:Must just be me... :)

Thu Apr 09, 1998 10:48:49 AM moderator_joseph_l:but it looks like diane might have had trouble, too

Thu Apr 09, 1998 10:49:29 AM robert_y:Like I said earlier, some sort of partial domain resolution that allows you to put in Nike and let it resolve the rest of the name (.org, etc.)

Thu Apr 09, 1998 10:50:18 AM robert_y:I believe Netscape and MicroSquish are putting some sort of feature like this in the next versions of their browsers...

Thu Apr 09, 1998 10:50:41 AM moderator_joseph_l:I agree that a technical solution would certainly be more elegant, given that the current dns was never meant to serve its current purpose. i wonder, tho ...

Thu Apr 09, 1998 10:50:56 AM moderator_joseph_l:whether interests are currently too entrenched to make changes through an rfc

Thu Apr 09, 1998 10:51:58 AM robert_y:Well, it would trigger a new land rush (aka greenmailers) if trademarks weren't considered in any new scheme...

Thu Apr 09, 1998 10:53:33 AM moderator_joseph_l:hmm. yes. so do you think trademarks should be considered when handing out the registrations? e.g. by NSI or the government?

Thu Apr 09, 1998 10:54:00 AM moderator_joseph_l:or should they be handed out, and then let the courts decide?

Thu Apr 09, 1998 10:54:35 AM thomas_o:Interesting comments...I've been following your discussion and appreciate your thoughts...before leaving, I would like to suggest that we should keep in mind a "world" perspective of the internet when discussing "the law" and legal issues

Thu Apr 09, 1998 10:54:57 AM robert_y:I guess it would have to consider trademarks or you'ld simply "move" the problems - not eliminate them. :)\

Thu Apr 09, 1998 10:55:12 AM moderator_joseph_l:excellent point. domain names are certainly international in scope.

Thu Apr 09, 1998 10:55:59 AM moderator_joseph_l:and we have not considered the international implications re: coordination

Thu Apr 09, 1998 10:56:34 AM robert_y:True.

Thu Apr 09, 1998 10:56:54 AM moderator_joseph_l:any thoughts on how this might be coordinated internationally? (currently, it seems de facto coordinated by NSI)

Thu Apr 09, 1998 10:58:09 AM robert_y:Good luck! Appointing any world governmental agency would only casue more problems than it solves... :)

Thu Apr 09, 1998 10:58:43 AM moderator_joseph_l:heh. the internet has done relatively well without much central coordination ...

Thu Apr 09, 1998 10:59:02 AM moderator_joseph_l:but as you pointed out earlier, someone has to manage the addressing function ...

Thu Apr 09, 1998 10:59:38 AM robert_y:Yeah, it just hurts my brain cells to try and solve THAT one so early in the AM... ! :)

Thu Apr 09, 1998 11:00:09 AM moderator_joseph_l:I'm just impressed that you are even awake at this time :). I'd be soundly asleep.

Thu Apr 09, 1998 11:00:35 AM robert_y:Thanks! Sorry, I must get going now.

Thu Apr 09, 1998 11:00:54 AM moderator_joseph_l:yes, let's call it a day. thanks both for your excellent comments

Thu Apr 09, 1998 11:01:00 AM moderator_joseph_l:hope to see you next week.

Thu Apr 09, 1998 11:01:25 AM robert_y:I'll try. Bye!

Thu Apr 09, 1998 11:01:40 AM moderator_joseph_l:bye

Thu Apr 09, 1998 11:01:58 AM thomas_o:Still formulating my thoughts...perhaps we can discuss international implications in the future.

Thu Apr 09, 1998 11:02:24 AM moderator_joseph_l:certainly. also, please feel free to post any thoughts on the discussion threads