Cybersquatting and individuals

[Andrew A. Adams]

I agree with Milton here, for both philosophical and legal reasons.

The philosophical is that the words in URLs, just like the words in any other
short phrase *be that one word or five) are subject to multiple
interpretations. No one person or group should be able to claim ownership of
our common linguistic heritage. In the world of real products Intel
discovered that they had created their own problem by naming their chips
numerically and then trying to claim ownership of the relevant numbers: 286,
386 and 486.

The legal side is that the claims made by trademark owners for DNS
restrictions have already gone well beyond what was ever allowed in general
commerce. I give the example to my students of McDonalds hardware store. Even
if my legal name is not McDonald (a common Scottish family name) I am
perfectly entitled to open up a McDonalds Hardware store. I can even open one
right next door to a fast food shop (*) with the same name. However, under
current DNS regulations it's very difficult for me to register any name with
McDonald as the primary string without facing a touch battle for control of
it. Outside off the DNS trademark violations require an element of "passing
off", i.e. some definite balance-of-evidence that consumers will be
detrimentally confused by the use of a name or graphical mark. This principle
is not embedded in the dispute resolution processes for DNS properly and
there are many cases where it is clear that other important legal principles
such as freedom of speech have been undermined by a strong idea of
"ownership" of words rather than customer protection (scoobydoo.co.uk,
ihateryanair, etc).

Trying to expand to individuals the rights thus over-granted to large
corporations in the DNS space would simply compound the mess we are in now,
rather than make the situation better for individuals. Reducing the value of
.com as the default "place" to do business online and opening up new TLDs
will hopefully provide a better solution for all net users by turning URLs
not into any kind of mark of authenticity but simply back into one of
multiple indicators of content. To my mind DNS registrations should not be
the subject of transfer orders except where a clear broad trademark violation
can be proved and then only as part of the recompense to the trademark
holder, much as assets derived from trademark violation otherwise might be
transferred to the holder by a court. Where there is no passing off (i.e.
where customers are not confused) then that is just free market competition.

(*) I refuse to call them restaurants since restaurants serve food and McDs
don't, IMHO.

--
Professor Andrew A Adams                      aaa at meiji.ac.jp
Professor at Graduate School of Business Administration,  and
Deputy Director of the Centre for Business Information Ethics
Meiji University, Tokyo, Japan       http://www.a-cubed.info/