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

[Brad Templeton <brad@templetons.com>]

On Thu, Jul 12, 2001 at 06:29:12PM -0700, Jeff Williams wrote:
> Brad and all,
>   Yes US TM law does this through "Classes" or TM's.  But even at that
> xxx.biz or yyy.info does not a TM make.  Rather it is simply a string
> of characters that is commonly known as a domain name on the
> Internet and within the DNS.  A locator if you wish.  Nothing more.

True but misleading.   Yes, you have to use a domain name in
a non-generic way in commerce in order to make it a trademark.  

But the reality is that domain names have become as important, or more
important to people than trademarks when it comes to naming their
companies and products.

> 
> >
> >
> > 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.
> 
>   Yes.  But descriptive names as part of a Domain Name are very useful
> and easy to relate to a service of a seller of goods and services.

Useful, but only useful for the person who gets there first, and thus
the cause of the disputes.   Note that I am not saying names can't be
descriptive, just that they can't be purely descriptive.

"drugstore.com" has become purely descriptive, it means "Drugstore Company"
and so it was worth millions to be the one and only drugstore company.

On the other hand, if the names are party descriptive, and partly branded,
there is no source of conflict.   If there are competing, branded TLDs,
then I can have "drugstore.yahoo" and you can have "drugstore.centraal" and
others can have names like it in any number of branded TLDs, as long as
we meet whatever rules the branded TLD sets for allocating us a bit of
their space.

There can be no conflict over these, or whatever conflict there is exists
within the branded TLD's rules, and customers can shop among competing
branded TLDs for the best methods of handling internal conflict.

The name "drugstore.yahoo" has no inherent value.  It only has the value
that Yahoo as a company brings to the brand.    This is very different
than drugstore.com, which because it generically means "drugstore company"
got assigned million dollar value.


> 
>   Hummmm?  I am not sure I agree.  As I said in my previous post, the
> cat is out of the bag now. Or the genie is our of the bottle.  You can't
> put the genie back in the bottle now...

Not quickly, certainly.  As I address, the question of what to do with
.com is the hard one.  I have a few possible solutions.  One good one is
to make the legacy generic TLDs pay well for their special position.
Make them pay enough, in fact, that all other domains are free, subsidized
by .com.    I think over time that would diminish, and eventually get rid
of the .com domain.  Of course some might argue it would give it more cachet.

It is possible, though difficult to phase out .com over a long period, like
a 5 year one.  You announce it's going away in 5 years.  You issue no new
domains within it.   You require each .com domain to declare its new name,
and you start forwarding all traffic to the new names.   After a couple of
years of forwarding, you shut down .com pointing all .com URLs and email
addresses and other services that can handle it to an explanation of how
to find the new name, or even an automated form to find them.

The phone system has managed to switch area codes in far less time, without
nearly as much useful ability at redirection and help.  So yes, it can be
fixed.   I am not sure it needs to.
> 
>   Well there is no monopoly here.  ORSC amongst other Root services and
> registries have generic TLD's and therefore offer competition.  That is a healthy
> thing...  SO I am a bit taken back by this comment.  More independent
> registries and Root structures are coming, some are in existence such as
> Ultranet and superoot.

The problem is multiple roots don't work.  We want reliability from our
names.  We want to hand out email addresses on business cards and have
them work.   If new.net sells one company "card.shop" and another
competing root sells another company "card.shop" and which one you get
depends on which root you use, the result is bad for everybody.

There has to be only one "card.shop" and that means that party has a
monopoly on the generic name "card shop", derived from the monopoly the
granter had on names ending in ".shop"

There can of course be multiple registrars and a single registry, but that
just moves it up a level.     It still means only one entity can have the
generic domain "card.shop" and that's an incorrect monopoly on a generic
phrase.


>   Agreed.  And by this same token, in a DNS context Domain Names should not
> be trademarkable.

This actually becomes moot.  If TLDs are brand names, all domains are indeed
trademarkable under licence from the owner of the TLD brand, but there is
no conflict -- that TLD owner sets the conflict rules.

If you do business under a domain name, I see no reason you should not
be able to trademark it, if it's a trademarkable term.   Of course
"card.shop" is not trademarkable (as a card shop) nor is "drugstore.com" (as
a drugstore company).  But oddly enough "card.shop" would be trademarkable
in an unrelated field.

> 
> However I am sure that Verisign/NSOL and the ICANN BoD and staff
> don't agree with this...

Nor will they ever.  They can be replaced, if the will to replace them
develops in the internet community, and by that I mean the key people at
the dozen largest ISPs.

What matters is coming up with a system that will win that support.  It
doesn't have to be my system of brand-name TLDs, but what is important
is that it not simply hand over monopolies to some new king.  I don't think
the community would be interesting in swapping one ICANN for a slightly
better run one.  Easier to fix the existing one, hard as that may seem.
> 
> > All TLDs will have to deal with 2LDs inside them that are non-generic and
> > conflict with other party's brands.

Indeed, and the market (and courts) will resolve just how they do that.
The TLD's customers will want protection from outside threats.  The TLD
will want the avoid hassles.  The factors will balance.

>  Some of us did!  I remember warning Jon about this many years ago....

I guess nobody listened.    It was January of 82, almost 20 years ago
that the draft on two-level domains was debated.  A long time ago in
internet time, so we can't be blamed too much for not seeing how it would go.

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