Domain Names: Trademarks and Taxonomy

Disclaimer

This idea, although independently conceived, has been loosely covered in RFC 2352. I will later briefly address its proposal.

Background

The Domain Name System, to over-simplify, translates between host names (such as moglen.law.columbia.edu) and IP addresses (like 128.59.177.251). One registers a domain name (columbia.edu) with the appropriate registry (in this case, for .edu), sometimes through an intermediary registrar, usually for an annual fee. Domain ownership is a sort of property, although it might also be thought of as a lease from the registry--the owner (tenant?) of the domain has the right to exclude others from it, the right to subdivide it, and the right to sell it (transfer the lease).

The Problem of Exhaustion

Because domains must be unique, they are subject to exhaustion. There can be only one pizza.com, only one google.com, and so on. Fortunately, we are not limited to .com: it is just one of the Top Level Domains (TLD). .net, .edu, and non-generic domains (.ca, .us, .cn...). However, the .com TLD is pre-eminent: because it is so closely associated with American consumer perceptions of "The Internet," a non-.com site won't stick as firmly in customers' heads. Sites targeted at a general e-commerce audience face consumer scorn and forgetfulness if they are exiled to the hinterlands of .biz, .info, and so on. When have you seen a Super Bowl advertisement for a .biz site? Exhaustion of the .com domain, then, is something worth considering.

Exhaustion may not occur very soon "naturally," but the practices of "cybersquatting," "domain tasting," and other speculation may bring an artificially early end to the .com namespace.

Trying to Categorize the Problem Away

The .biz is the most flagrant example of attempting to create a new .com. Although it includes some safeguards for trademark owners, .biz and .com's target markets overlap. This creates yet another domain name for big corporations to buy, as anticipated in RFC 2353 §3(b).

Another approach is to create more specific TLDs, such as .museum and .aero. However, with the search-based navigation popular on today's World Wide Web, .museum looks odd: why re-train patrons to type danish.national.museum when they could type "danish national museum" into a search engine? .aero has great potential for usefulness because the wide use of IATA codes for airlines and airports: business travelers might like to be able to type jfk.aero or ua.aero (not registered, corresponding to United). However, because the .aero registry wants to get money and because most airlines and airports do not think it worth their time, .aero coverage is spotty.

The Trademark Wrinkle™

Trademarks and domains have an uneasy relationship. The .com domain, although not under .us, is de facto a US domain and hosts frequent run-ins with US trademark law. Registrars now follow the URDP, which attempts to resolve disputes against bad-faith users and in favor of trademark holders. As a result, the .com namespace has some overlap with the trademark namespace. However, trademarks have some features which make them less than analogous to domain names. [US] Trademarks must be used in commerce: one cannot speculate on trademarks. Similarly, trademarks are granted with respect to specific goods and services--a situation which might be mirrored in domains by the introduction of new TLDs (with the accompanying problems noted above). RFC 2352's assertion that "all names are unique" is not true and destroys its usefulness. Even going with a .tm.us system (where x.tm.us goes to the trademark holder of "x" in the United States), there would be multiple legitimate claims to delta.tm.us.

For example, "Skadden" is a live trademark for legal services. "Skadden Stairs, Inc," a hypothetical escalator maintenance company, may still go by "Skadden." This mandatory category restriction on trademarks would only be found in domain names if .com were to be abolished (or reserved for companies operating in a certain number of different fields simultaneously) and specific domains (.lawfirm?) introduced. This system would have prevented quite a mess: the owner of nissan.com would have set up shop at nissan.computers and left nissan.cars free. Aside from the loss of brand equity (a taking? is this really property or even a state actor?), overhead costs, and mass user confusion, what would be wrong with getting used to yahoo.search or moglenravicher.lawfirm?

Domain names are not (yet) the same as trademarks. I currently own three domains, only one of which is (sort of) used in commerce. I supposed I could be punted to some version of .name, which has its own obvious exhaustion problems, or to a .personal or .homepage or .whatnot. .com could be reserved for commercial use, and other current .com denizens would be forced to undergo token monetization to stay in place. I once sold a (one) t-shirt for one of my domains on Cafepress: that's entrepreneurial enough, I suppose. The current bad-faith provisions of the UDRP should prevent this from being abused to squat on existing trademarks. I think most problems (except for users) could be worked around, but how can you make such a drastic change when some people still don't know the difference between the search box and the location bar?

Local is Trendy

One area where a subdivided namespace has met some success is in country domains (other than .us). If you're operating Skadden Stairs in lovely Tuvalu, skadden.tv is yours for the taking. Of course, .tv and .to, among others, provide an example of a different problem (country codes being usable as English-language generics or typo-squatting pastures as .cm. Sub-categorization has been attempted in the .us domain, and is often used for schools ( ... .county.k12.state.us, in some areas, which combines both geographic and non-geographic classification.

There is a reason that businesses did not flock to obtain .city.county.state.us names before the overhaul of the .us registry: they are hard to remember. Would you go to hamdel.ny.ny.ny.us for lunch? How about hamilton.deli.ny.ny.ny.us? Even the less repetitive international-business-machines.co.ny.us suggested by the RFC editor's preface will not be happening any time soon.