Re: [icann-europe] Recommended Reading: Brad Templeton on ICANN and the DNS

[Brad Templeton <brad@templetons.com>]

On Thu, Jul 12, 2001 at 05:50:07PM -0700, Jeff Williams wrote:
> Brad and all,
> > New.net's home page says the exactly wrong thing: "Now you can get names
> > that are truly descriptive of your business, site or offering."
> 
> ????  How is this wrong in your opinion?  Just curious...

That's the lesson of centuries of trademark law, trying to resolve the
problem of how to allow people to name (commercial) things and get rights
in those names, and avoid and resolve conflicts between people wanting the
same names.

Trademark law took the simple stance -- nobody gets ownership of names
that are descriptive.  In fact, strictly speaking, those aren't names at
all.   And it was a wise stance and has worked for a long time.

TM law forbids ownership of descriptive names because there will be conflict,
and indeed because no one person should have such ownership by any method,
be it getting there first, or auction or lottery.

A _name_ in the trademark sense is not descriptive.  My name is "Brad"
and not "you"   If you tried to name your kid "you" it would be
allowed (since this is not commercial) but most would agree it's
not really a name at all.

> 
> >
> >
>   I believe this is intentional.  But you would need to ask the New.Net folks
> to be sure.  However, I believe as I think New.Net does that Trademarking

Of course it's intentional.   Ownership of generic terms is a highly
valuable thing!   Companies will, and have paid highly for it when it
comes to .com domains.   New.net wants a monopoly on domains ending in words
like "shop" and "mp3" etc. and nobody should be surprised that they should
want it.

However, no one party should have such a monopoly.

If TLDs are brand-names, as they should be, nobody gets any monopolies on
generic terms.   Within these TLDs, the brand-owners can have any set of
rules the market will like.   That's what we want, innovation and
competition and free markets.   Today we can't have that, even with
alternate roots because NSI has a monopoloy on ".com" and .com has become
a generic term for commercial internet domain.

Trademark disputes will always exist, in any system, and they belong in
the courts, or in arbitration when mutually agreed to.   No TLD system
will stop Kodak from going after you if you try to do business under
kodak.<anytld>.   That's because Kodak is of course a very special
brand name.     However, if Yahoo owns a TLD called .yahoo, they can
sell any generic term they want in it without conflit with anybody, because
it's automatically non-generic when you stick .yahoo on the end of it.
(unless referring to the characters from gulliver's travels)

All TLDs will have to deal with 2LDs inside them that are non-generic and
conflict with other party's brands.  

However, as you note, if there are lots of TLDs (and there would be as
I have proposed) there would be far less conflict over 2LDs, and that's
good.



>   Yes I am well trained in TM law.  However, the Lanham act (US)
> never envisioned the internet not to mention DNS and Domain Names...

Indeed.  My point is simply that there is a well-tested system of rules
for how to deal with names and conflicts.   When we designed DNS, we
were stupid, and ignored all that.  Well, we weren't that stupid, because
nobody could see what was going to happen, and how big domain names would
become.  We were mostly just worried about how to go beyond one level and
provide some structure to things.   (In fact, it's my sad recollection
that I was the one who suggested to Jon that we divide it up into
commercial, military, geographical, educational etc.   Perhaps the
stupidest suggestion I ever made.)

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