Fun_People Archive
23 Apr
The NSI & Domain Name conflicts

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From: Peter Langston <psl>
Date: Tue, 23 Apr 96 13:09:29 -0700
To: Fun_People
Subject: The NSI & Domain Name conflicts

Forwarded-by: Keith Bostic <bostic@bsdi.com>
Forwarded-by: Phil Agre <pagre@weber.ucsd.edu>

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From: Carl Oppedahl <carl@oppedahl.com>
Subject: In case it is of interest

Three graduate students at the Georgetown University Law School (David
Pauker, Stacey Halpern, and Jonathan Agmon) have prepared what is surely
the definitive and comprehensive resource covering Internet domain name
disputes provided, appropriately enough, in the form of a topic-specific
web site.  The site, called "What's in a Name?", is located at
<http://www.law.georgetown.edu/lc/internic/domain1.html>.

	*Who should visit this site*

For anybody who has a domain name ending in COM, ORG, GOV, EDU, or NET, this
site is a must-read.  It illustrates vividly how vulnerable any domain name
owner is to loss of a domain name on just 30 days' notice, without any of
the usual legal safeguards against loss of a valuable property right.

	*What's there*

It will be apparent to any visitor that the "What's in a Name?" web site is
the result of a prodigious amount of effort.  The authors have drawn
together nearly everything about the twenty-five publicly known domain name
disputes, and provide a synopsis of each dispute as well as links to further
information about them.  (Because Network Solutions Inc. (NSI) conducts its
decisionmaking process regarding domain name disputes in secret, one can
only speculate how many other domain name disputes have arisen and how NSI
decided the disputes.  The authors can't be blamed for not knowing about
all of the dispute decisions that NSI has made.)

The authors go on to provide helpful background to trademarks and domain
names, they discuss in detail the present NSI domain name policy, and they
review a number of proposed replacements for the present flawed NSI policy.

As counsel for Roadrunner Computer Systems Inc. in its lawsuit against NSI,
I was particularly interested in the authors' comments on the present NSI
policy, for example:

"In the United States, NSI's Dispute Resolution Policy does not take account
of common law or state registered trademarks, unfair business practices,
dilution, or conflicts with even well known marks.

"NSI's Dispute Resolution Policy is an imposed contract predicated on
unequal bargaining power, failing to provide a proper mechanism for
adjudicating disputes.

"NSI, a private company, is acting in a quasi-judicial manner with limited
mechanisms for judicial review."

<http://www.law.georgetown.edu/lc/internic/prob1.html#problem>

"NSI's Dispute Resolution Policy still allows the owner of a federally
registered trademark to receive relief not dissimilar to a preliminary
injunction -- placing the domain name on hold during the pendency of the
litigation -- without having to demonstrate any of the substantive
requirements of a preliminary injunction, such as irreparable harm, a
likelihood of success on the merits, or even posting a bond. Instead, the
owner of a federal trademark can force NSI to place a domain name on hold
simply upon proof of federal trademark registration."
(http://www.law.georgetown.edu/lc/internic/introd1.html)

	*What will happen next*

One can only hope that what will follow is informed debate regarding the
manner in which domain name disputes get decided.  In the past, NSI's
process of development of its domain name policies has taken place in
secret, providing special relief to trademark owners to the detriment of
domain name owners.  In future, domain name owners need to play an active
part in informing themselves about the NSI policy and the legal and fairness
issues surrounding domain names.  Ideally, NSI would for the first time take
into account the interests of domain name owners in formulating a
replacement policy.  The "What's in a Name?" web site will be an invaluable
resource for this debate.

David Pauker, Stacey Halpern, and Jonathan Agmon deserve the thanks of the
Internet community for their hard work in assembling this important web site.
---
Carl Oppedahl, oppedahl@patents.com  Oppedahl & Larson, patent law firm
http://www.patents.com/ is a web server with frequently asked questions
  and answers on patent law and other intellectual property subjects
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