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[comments-wgb] Novel, last-minute suggestion on how to protect trademarks

Here's a last minute suggestion from a software engineer and patent lawyer turned Internet entrepreneur. The following domain name system would go a long way to solving the problems discussed by groups B and C, although it would upset cybersquatters and other such get-rich-quick types.

1. Tens or hundreds of thousands of top level domains exist, each of which are very specific and generic. By generic, I mean that they are just ordinary words or terms in some language and would not be trademarkable. By specific, I mean that they should have some meaning other than a synonym for dot com. In other words, .construction, .furniture, .toys, .politics, .religion, .genealogy, .and so on, but not .biz, .web, .store, .firm, etc.

2. The second-level names can not be generic. They would all have to meed the same standard of "non-genericness" that has been well established in trademark law: This standard has served us well for many generations. For example, nobody could register phone.wireless, phone.store, phone.company, or phone.book because they are all so broad that they bring to mind a category or industry rather than a specific company. Refusing registration for such names means that nobody is going to get an undeserved windfall. They will have to earn domain name recognition by having a great website just like companies have to earn trademark recognition by having a great product (and marketing, of course).

3. The domain name registration fee goes to a trademark-like examination of domain names rather than Network Solutions' (or some other registrar's) shareholders. Registered trademarks can be looked up very easily by computer. In most cases, it would take a very specific match between a trademark and domain name plus a match between the trademark's scope and the TLD. For example, the word OMEGA is registered over 100 times in the US, mostly to different companies. These registrations can coexist because they are for completely different products. A good chartered domain name system would allow for these 100 registrations plus thousands more where the mark OMEGA is not yet being used.

4. With this examination, existing trademarks are protected, but only in the scope (read TLD) in which they are known or used. If any domain name brings to mind a particular company, only that company would be allowed to register it. Some examples: bigyellow.phonebook, ivory.soap, coke.softdrink, att.wireless, levis.jeans, levis.clothing, ford.cars, ford.autos, ford.automobiles, mcdonalds.fastfood, mcdonalds.hamburgers, and so on. There should be nothing wrong with allowing registrations such as ford.paintings, mcdonalds.artwork because these can not infringe the famous names. However, where the trademark antidilution laws would apply, such as with coca-cola.pencils, registration should not be allowed.

5. To make cybersquatting harder, treat the right to a domain name as the right of the public as a whole, not the right of the registrant. Consider this: The foundation of trademark law is that people (consumers) should be able to rely on the source and therefore quality of goods and services, based on marks that identify the source. It's not the company that owns the mark, but the idea in the heads of millions of people that gives a mark its strength. This is also what gives governments the right to enforce trademark laws. The governments are doing so because of the public interest, not merely the plaintiff's interest.

Applied to domain names, any domain name registration that passes initial muster (probably by computer), grants only a provisional right to start using the domain name and build mindshare. As mindshare is built and nobody can show prior use, the right to the domain name is strengthened. If a newly-registered domain name is not used within a preset time, it is lost and someone else who is more prepared can start using it. Note that in a world of very specific top level domains, it is very hard to fake use of a domain name. Note also that this is modeled after the very successful practice of allowing use of a trademark with no registration and accepting registration applications for an "intent to use" a particular mark.

This is just an introduction. For a more complete description, examples and supporting facts, please visit http://www.design-and-hosting.com/nameplan/index.htm

Peter Rehm