Tuesday, April 7, 1998

Tue Apr 07, 1998 03:01:19 PM moderator_gregory_t:Hello, my name is Greg Teran, and I am one of the teaching fellow for this course. I'll be "guiding" today's seminar. The flow of the discussion is entirely up to you, with the following caveat: no flaming, spitting, or spamming.

Tue Apr 07, 1998 03:01:49 PM moderator_gregory_t:We'll be discussing Module 2: domain names. If you have been having trouble linking to the domain names module, you are not alone! The link should be back up, and (hopefully) everyone should be able to download it at this point.

Tue Apr 07, 1998 03:02:43 PM moderator_gregory_t:The 5th and 14th Amendments to the U.S. Constitution provide that governments (federal and state) may not deprive citizens of life, liberty, or property without due process of law. "Due process" is generally construed to require notice and a fair hearing, i.e. a prior warning that you are going to be deprived and also a chance to do something about it. When NSI sends out a 30-day notice, is it violating this basic Constitutional precept?

Tue Apr 07, 1998 03:04:15 PM barbara_f:Is NSI a government organization?

Tue Apr 07, 1998 03:05:06 PM moderator_gregory_t:I think it is a government-chartered corporation, but I may be incredibly wrong on that point. Anyone know for sure?

Tue Apr 07, 1998 03:05:38 PM bob_p:As far as I know NSI is just a corporation with a contract from the governement.

Tue Apr 07, 1998 03:06:07 PM bob_p:The contract has expired, BTW, it was extended until Sep 30 1998

Tue Apr 07, 1998 03:06:30 PM barbara_f:Does the 5th & 14th Ammendment apply to *charter* or *contract* organizations?

Tue Apr 07, 1998 03:07:34 PM moderator_gregory_t:For the sake of discussion, let's assume that it is an arm of the federal government. I will find out (during this session) NSI's actual status.

Tue Apr 07, 1998 03:07:54 PM bob_p:I believe that when a private party deprives you of property it is called "theft."

Tue Apr 07, 1998 03:08:16 PM barbara_f:Is there any kind of hearing board that exists to hear complaints about the NSI notices?

Tue Apr 07, 1998 03:08:31 PM bob_p:No, no hearing is given or allowed.

Tue Apr 07, 1998 03:09:05 PM barbara_f:Have we established that a domain name is "property"?

Tue Apr 07, 1998 03:09:35 PM judi_w:isn't that the question, Barb?

Tue Apr 07, 1998 03:09:42 PM bob_p:It has value, and you can own it. It sounds like property to me. How would it not be property?

Tue Apr 07, 1998 03:10:15 PM david_d:Is a phone number property?

Tue Apr 07, 1998 03:10:17 PM barbara_f:I agree that it should be property - I am just curious what precedent exists.

Tue Apr 07, 1998 03:10:29 PM judi_w:But if I have a trademark interest and it happens to be the same as your name, who's property is it?

Tue Apr 07, 1998 03:11:19 PM barbara_f:And if we both have the same name, is the question changed?

Tue Apr 07, 1998 03:11:24 PM bob_p:A domain name isn't a phone number. An IP address is like a phone number. A domain name is a name that could be bound to any IP address.

Tue Apr 07, 1998 03:12:59 PM judi_w:The phone number question, I think, is particularly apt. Why haven't there been the problems with the 1-800 numbers that spell out things.

Tue Apr 07, 1998 03:13:54 PM moderator_gregory_t:Sorry I've been gone for a while. The NSI is a contractor. One can make the argument that it is a federal or state actor, thus implicating the 5th or 14th amendment.

Tue Apr 07, 1998 03:14:59 PM a domain name "more" of a property than a phone number?

Tue Apr 07, 1998 03:15:20 PM moderator_gregory_t:...because of it's mnemonic nature?

Tue Apr 07, 1998 03:16:11 PM barbara_f:Mnemonic, and possibly containing trademark. It seems to me there should be some type of hearing process, to arbitrate ownership, when there is a dispute.

Tue Apr 07, 1998 03:17:36 PM barbara_f:At the very least, I would expect that registerred owners of a trademark should have some protection from dillution.

Tue Apr 07, 1998 03:17:39 PM moderator_gregory_t:What sort of hearing would you suggest? Should the outcome of the hearing have any bearing on a subsequent trademark dispute before the Patent & Trademark Office (PTO)?

Tue Apr 07, 1998 03:19:07 PM barbara_f:I would expect (this may be naive!) that the PTO hearing would effect the outcome of the NSI hearing.

Tue Apr 07, 1998 03:20:13 PM moderator_gregory_t:No, I don't think that's naive. I was just assuming that the PTO hearing might take a long time to occur, whereas a "quick" hearing before the NSI prior to the 30-day cutoff might well occur before the PTO could reach a decision.

Tue Apr 07, 1998 03:20:23 PM moderator_gregory_t:For more on the subject, see Steven A. McAuley, The Federal Government Giveth And Taketh Away: How NSI's Domain Name Dispute Policy (Revision 02) Usurps A Domain Name Owner's Fifth Amendment Procedural Due Process, 15 J. Marshall J. Computer & Info. L. 547 (1997) (recommending an oral hearing prior to pulling the plug on a domain name). Unfortunately, this article is published in a legal periodical (John Marshall Journal of Computer and Information Law) that doesn't appear to be available

Tue Apr 07, 1998 03:21:01 PM moderator_gregory_t:Consider the following hypothetical: Joe Supercool is a citizen of Ruritania. Ruritania has no legal trademark protection and has never been a party to a trademark treaty. Joe publishes (with permission) excerpts from Ruritanian comic books on his website, www.supercool.rur, which has been up since 1995. An American company, Supercool Comics (tm since 1990), sets up the following website: It quickly discovers Joe's site and asks NSI to give Joe the boot. What should be

Tue Apr 07, 1998 03:21:09 PM barbara_f:Since the issues involved are similarly complex, I suspect the NSI hearing would not be quick.

Tue Apr 07, 1998 03:21:13 PM david_d:Since a domain name by it's nature is for public use, standard trademark infringement procedures would seem in order to prevent someone else from using it (I'm not familiar with what that procedure is, but there must be a well established one for such a common problem.)

Tue Apr 07, 1998 03:22:30 PM moderator_gregory_t:...result here? Does it matter that Joe lives in a physical jurisdiction where trademark law doesn't exist? That there is a slight difference in the domain names?

Tue Apr 07, 1998 03:25:14 PM moderator_gregory_t: (sorry for the discontinuity. my e-share hiccuped)

Tue Apr 07, 1998 03:26:45 PM moderator_gregory_t:...I meant to say that John Marshall article doesn't appear to be available on line. It certainly is available elsewhere! :)

Tue Apr 07, 1998 03:27:02 PM moderator_gregory_t:Does anyone have thoughts on Ruritania, or is it too far out in left field?

Tue Apr 07, 1998 03:28:14 PM judi_w:Is anyone else bothered by the length of time it's taken to get online - and that supercool.rur has been there since 1995? Isn't there a bit of a fairness issue, as well.? Especially in the case of our class example, where people get online and develop businesses only to be shut down because of a name dispute.

Tue Apr 07, 1998 03:29:09 PM bob_p:Yes, I'm bothered by the fact that you can use a domain name for several years and then have someone try to take it away.

Tue Apr 07, 1998 03:30:09 PM bob_p:Doesn't Joe have an implied right to use his own name? How can you claim trademark infringement on Joe's name?

Tue Apr 07, 1998 03:30:35 PM david_d:The "I (heart) NY" logo was developed by a vendor who sold it for several years until someone realized he hadn't TM'ed it, ignorance of the law is no excuse and all that...

Tue Apr 07, 1998 03:31:20 PM david_d: (I meant to say that the group that realized this then TM'ed it and knocked the original out of the market.)

Tue Apr 07, 1998 03:31:58 PM david_d:It was over 10 years ago I heard this, wish I could cite the source...

Tue Apr 07, 1998 03:32:13 PM moderator_gregory_t:Joe does have a right to use his own name in most circumstances, although that right isn't boundless. Joe Exxon would have trouble opening a gas station.

Tue Apr 07, 1998 03:33:02 PM judi_w:Joe Exxon would also have a hard time using or .net or.anything else, as well.

Tue Apr 07, 1998 03:33:03 PM david_d:A name is usually protected for a specific field, yes? Exxon diapers wouldn't have much trouble?

Tue Apr 07, 1998 03:33:31 PM bob_p:Ah, I see. Since Joe is displaying Comics, and SuperCool Comix does comics then there is a substantial chance of missleading customers.

Tue Apr 07, 1998 03:34:24 PM bob_p:Exxon is a made up name an so is highly protected. Exxon diapers might have trouble.

Tue Apr 07, 1998 03:34:52 PM judi_w:An email provider in Canada registered a bunch of Anglo-Saxon names, so his customers with those last names could have their own name as their address, i.e. Avery labels objected and got a judge to agree. If your name is Avery or Dennison, you can't use your name on that service.

Tue Apr 07, 1998 03:35:58 PM moderator_gregory_t:Are there alternatives to the existing domain name structure that would avoid the problem of trademark infringement? Are we "hooked on mnemonics," or could we eventually convert to a system without them?

Tue Apr 07, 1998 03:36:41 PM bob_p:Can you site a reference on the Avery case? What was the reasoning?

Tue Apr 07, 1998 03:38:02 PM judi_w:Sorry, I don't have it at my elbow. But I'll have it for next week's seminar. It's a case we worked on, so I promise it's not rumor.

Tue Apr 07, 1998 03:39:08 PM barbara_f:It seems curios to me that NSI doesn't check against registered trademarks BEFORE it issues a domain name. If it did, the customer could at least be warned that there was a potential comflict. Perhaps the solution is to have a domain, that allowed only TM's, and let the others be first come-first serve.

Tue Apr 07, 1998 03:40:14 PM bob_p:NSI is part of the Internet world, not the legal world. Who ever thought about trademarking domain names?

Tue Apr 07, 1998 03:40:54 PM moderator_gregory_t:I think Barbara's solution would solve a lot of problems, but you would still have the "dilution" problem.

Tue Apr 07, 1998 03:41:40 PM that my site might dilute McDonald's trademark, even though they own a site named

Tue Apr 07, 1998 03:42:02 PM bob_p:One serious problem is that a trademark can be used for many different things. Domain names must be unique.

Tue Apr 07, 1998 03:42:05 PM barbara_f:Gregory - I suspect that we are indeed "hooked on mnemonics". The whole point is to have a domain that is easy for your clients/customers/friends to find.

Tue Apr 07, 1998 03:44:01 PM barbara_f:I know that an accounting firm has all the possible variations of my last name registered - I WAS a little miffed to find this out!

Tue Apr 07, 1998 03:45:41 PM bob_p:I've been threatened, twice in the last 2 years, with suits over having registered my last name. Last threat came thursday night. I'm not miffed, I'm POed. They've been doing business under a different domain name for 2 years.

Tue Apr 07, 1998 03:46:17 PM judi_w:I agree on being hooked. How many times do you go looking for some company or product by first trying I do all the time -- and, more often than not, find who I'm looking for. It's too powerful a marketing tool for companies to give up too easily.

Tue Apr 07, 1998 03:46:24 PM moderator_gregory_t:If we are "hooked on mnemonics" (I sure am), maybe there are mnemonic structures that would decrease the likelihood of conflicts -- like the ".tm" convention that Barbara suggested.

Tue Apr 07, 1998 03:46:26 PM bob_p:I registered it 3 years ago.

Tue Apr 07, 1998 03:47:13 PM moderator_gregory_t:Bob -- what happened to the first threatened lawsuit, if I may ask? Did they back down?

Tue Apr 07, 1998 03:47:17 PM bob_p:The .tm .com .gov endings, the who gTLD structure, confuses people.

Tue Apr 07, 1998 03:47:39 PM bob_p:Yes, they backed down, and registered a variant of the name, and have been using it ever since.

Tue Apr 07, 1998 03:48:02 PM moderator_gregory_t:Is "consumer confusion" on the net really all that likely? It strikes me that few people looking for Blah Corporation's website would, sight unseen, actually type "" into their browser's command line. They would ask someone who knows where the site is (e.g. by talking to someone who knows where it is, calling up Blah directly, or reading a Blah advertisement). Barring that, they would go to a search engine, and most search engines offer at least perfunctory descriptions of

Tue Apr 07, 1998 03:48:20 PM moderator_gregory_t:...the pages that they turn up, so you can separate the legitimate Blah page from other pages. Don't these methods of finding pages essentially eliminate any likelihood of confusion?

Tue Apr 07, 1998 03:48:42 PM barbara_f:The advantage of having both "commercial" and "non-commercial" classes of names would be to let the poor sod whose last naem is Nike or Firestone have a shot at a domain name his friends could liocate.

Tue Apr 07, 1998 03:49:36 PM bob_p:Everyone uses search engines, 70% of the time if a person finds your site it's from a search engine. the rest of the time it is from something a friend told them or from advertising.

Tue Apr 07, 1998 03:52:01 PM if consumers locate sites through information resources that dispel confusion up-front, how could they possibly be confused later?

Tue Apr 07, 1998 03:52:12 PM bob_p:What we need is something that works better than search engines and domain names. We need the equivalent of Yellow pages and white and blue page directories.

Tue Apr 07, 1998 03:52:13 PM barbara_f:I often try the business name without going to a search engine first. So not "everyone" goes to the engine first!

Tue Apr 07, 1998 03:53:19 PM barbara_f:I agree with Bob - "yellow pages" is the way to go. But how would it be set up, if not on a distinction based on the suffix?

Tue Apr 07, 1998 03:53:46 PM bob_p:And if you type "" and don't get a page about tires what do you do? If you got a page about fireplaces would you think you were talking to the firsetone tire company?

Tue Apr 07, 1998 03:53:59 PM moderator_gregory_t:We could distinguish based on metatags! //haha

Tue Apr 07, 1998 03:54:05 PM barbara_f:It seems to me that anything else would end up being cumbersome to set up and enforce.

Tue Apr 07, 1998 03:56:10 PM barbara_f:Bob - I try the name first, and if I don't get what I want, then I go for a search engine. Mayeb I've been lucky, but I find what I'm looking for most of the time.

Tue Apr 07, 1998 03:56:11 PM bob_p:The net works because it is to everyone's advantage that it works. If you can make it to everyone's advantage to do something, they will do it. That's also why the net works world wide. This may all sound like a "no duh!" but it is an important distinction between the way the net works and the way the law works.

Tue Apr 07, 1998 03:56:57 PM barbara_f:Agreed!

Tue Apr 07, 1998 03:57:41 PM moderator_gregory_t:Not a "no duh" at all. But this particular problem is tough because whether you choose to protect or not protect trademarks in domain names, someone's ox gets gored.

Tue Apr 07, 1998 03:57:48 PM barbara_f:So how would you set up the "yellow pages"?

Tue Apr 07, 1998 03:58:42 PM bob_p:Exactly. There is no win-win situation on trademarks because owning a trademark is intended o create a situation with winners and losers.

Tue Apr 07, 1998 03:59:38 PM barbara_f:Gregory - you are not going to be able to make everyone happy. That's a given. The best to hope for is something that most parties would agree is "fair".

Tue Apr 07, 1998 04:00:45 PM bob_p:Instead of using these silly type names just use "Bob Pendleton" You need a way to make the name unique. For example, add my birthday, or any other information that makes it unique. Associate it with an arbitrary IP address and there you have it.

Tue Apr 07, 1998 04:01:35 PM barbara_f:I haven't read the article about domain name dispute policy - does anyone know the rationale for NOT having a dispute process?

Tue Apr 07, 1998 04:01:59 PM moderator_gregory_t:... Maybe if, over time, we developed a domain space (as Barbara suggested) where trademarks would "live" or "useful mnemonics" (as Bob is suggesting), we can make this problem go away, or at least reduce it to manageable size.

Tue Apr 07, 1998 04:02:26 PM bob_p:BTW, we all ready have this technology. It's called x.400 or x.500 (can't remember) and you access using the LDAP protocol.

Tue Apr 07, 1998 04:02:28 PM david_d:Not just fair, but a basis for protecting the work you put into building good will. If a name isn't protected enough for the business to make a reasonable return, why bother?

Tue Apr 07, 1998 04:03:51 PM moderator_gregory_t:Well, we've come to the end of the hour. Feel free to continue discussing these issues for as long as you like. I believe this chat will be archived, although I don't know where its final resting place will be

Tue Apr 07, 1998 04:04:17 PM bob_p:NSI isn't a court. They are just a company selling addresses. Would you expect you phone company to hold hearings over YellowPages listings?

Tue Apr 07, 1998 04:05:59 PM david_d:Marketing point: *.com domain names are more valuable right now that any other domain. That's because current practice makes that the best known TLD. Netscape assumes www.*.com if you don't specify.