The Name Game
The Domain Name Game
The Widgets Corporation decides to start a Web site and
naturally wants to name it Widgets.Com. But much to the
consternation of its management, it discovers there already is a
Widgets.com. Someone else has registered the “domain name” and
Widgets is stuck.
It happens every day as the battle for the
best domain names grows. But what in fact is a domain name and
what are the issues surrounding their use? Domain names are
simply the addresses of the Internet. Without the domain name, a
computer would have no idea where to look for a Web page, and
e-mail routers would not be able to send e-mail. Domain names
are divided into hierarchies.
The top-level of the hierarchy
appears after the last dot in the domain name. In
“microsoft.com”, the top level domain name is .com.
The .com
name is the most common top-level domain name, and is used to
indicate that the domain name is owned by a commercial
enterprise. The disputes that arise over domain names involve
“second level” domain names directly to the left of the
top-level domain name. For instance, in the address
“www.microsoft.com,” the second-level domain name is
“Microsoft.” Two identical second-level domain names cannot
coexist under the same top-level domain. For example, even
though both the Delta Faucet Company and Delta Airlines would
like the “delta.com” domain name, only one Delta company can
have delta.com.
Unfortunately for both Delta Faucet Company and
Delta Airlines, that Delta company is Delta Financial of
Woodbury, New York. Instead of using delta.com, Delta Airlines
uses deltaairlines.com, while Delta Faucet Company uses
deltafaucet.com. In order to register a second-level domain name
under a top-level domain, a request must be made to the
organization that has the power to assign names for that
top-level domain.
Prior to December 1999, a company called
Network Solutions Inc. (“NSI”) was almost solely responsible for
the registration of second level domain names for the most
popular top-level domains, including .com, .net and .org. As of
December 1999, the ability to register.com, .net and .org domain
names was spread out among many registrars. These registrars are
accredited by The Internet Corporation for Assigned Names and
Numbers (or “ICANN”), a non-profit corporation formed
specifically to control Internet domain name management and
similar functions.
NSI continues to assign domain names, but now
they are just one of many domain name registrars. All of these
registrars assign names on a first-come, first-served basis, and
do not do any checking before assigning a new domain name.
Because of the increasing popularity of the Internet, companies
have realized that having a domain name that is the same as
their company name or the name of one of their products can be
an extremely valuable part of establishing an Internet presence.
When a company finds that the domain name corresponding to their
corporate name or product trademark is owned by someone else,
the company can either choose a different name or fight to get
the domain name back from its current owners. When a dispute
over a domain name occurs, the parties can always turn to the
courts.
While courts and judges have the authority to award
control and ownership over domain names, the judicial process is
notoriously slow. Consequently, many parties have avoided the
courts and turned to the domain name dispute policies of the
domain name registrars. In response to intense lobbying from
trademark owners and famous individuals, Congress passed the
Anticyber-squatting Consumer Protection Act in November of 1999.
This act made it easier for individuals and companies to take
over domain names that are confusingly similar to their names or
valid trademarks. To do so, however, they must establish that
the domain name holder acted in bad faith. One portion of this
Act related to famous individuals. This portion allows
individuals to file a civil action against anyone who registers
their name as a second level domain name for the purpose of
selling the domain name for a profit. The more general portion
of the statute protects companies against persons who, in bad
faith, register a domain name that is the same or confusingly
similar to an existing trademark.
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