Number: 404

Lawrence J. Siskind

Via FedEx

Ms. Patrice Washington
Office of Public Affairs
National Telecommunications and
Information Administration
Room 4898
14th St. and Constitution Ave., NW
Washington, DC 20230

Re: Request for Comments on the Registration
and Administration of Internet Domain Names

Dear Ms. Washington:

The following comments are offered in response to Question No. 2. (How might current domain name systems be improved?)

By way of introduction, I am an attorney practicing in Northern California. I have specialized in intellectual property law for the past 18 years. I head the Cooper, White & Cooper Intellectual Property Law Group, and I frequently write and lecture on high-tech legal issues. The following comments reflect no one's views but my own.

The use, misuse, and sometimes flagrant abuse of trademarks functioning as domain names on the Internet has been much in the news lately. Cyber-squatters grab famous marks as their addresses for their "para-sites", and then extort payments from the rightful owners. Cyber-pranksters use marks to misdirect and mislead surfers.

The law can handle such conventional sins. What the law cannot handle are conflicts between honest disputants, each with legitimate claims to a particular domain name. For employing trademark law to resolve domain name disputes is sometimes like trying to fit the proverbial round peg into a square hole. It often won't go in, and when it does go in, it tends to jiggle around loosely.

Consider the domain name gateway.com. Gateway 2000, the billion dollar computer maker, tried to reserve it as a domain name, only to discover that tiny Gateway.com, Inc., a network consulting service, had beaten it to the punch. Gateway 2000 sued in federal court in North Carolina to evict Gateway.com, Inc. -- and lost. The court found that the smaller company had reserved the domain name for legitimate reasons. The result appears proper, but it underscores the inability of cyberspace to accommodate more than one legitimate claimant to a domain name.

In the traditional marketplace, as long as no public confusion results, the same mark may be used by many different companies to identify different goods and services. Thus, UNITED identifies both an airline and a moving company. DELTA air lines coexists with DELTA faucets and DELTA dental services. But just as the telephone system allows only one station for any one telephone number, the Internet allows only one DELTA for each TLD. So, despite the number of companies legitimately using DELTA as a trademark, there can be only one delta.com. (Interestingly enough, that one address does not carry information on air travel, faucets, or teeth. The first company to reserve that domain name was an Internet Service Provider named deltaComm Development. The other DELTA companies have had to find different domain names.)

The international Internet community has recently backed a plan to adopt 7 new TLDs for different kinds of entities. Increasing the number of available TLDs will allow more legitimate domain names to coexist on the Internet, just as they can coexist as trademarks in the regular marketplace. But the proposal does not go nearly far enough. Most commercial users will still race and jostle to append their mark to the popular .com TLD. Even if commercial users spread out and embrace the newly available TLDs, there will still be room for only one "acme" domain name for firms, and only one "acme" domain name for stores. If the marketplace contains more than one firm named ACME, and those firms offer different goods and services, the Internet should accommodate more than one "acme.firm" domain name.

A better solution would be to scrap the present system of lettered TLDs and replace them with the 42 numeric International Classes used by the U.S. Patent and Trademark Office in sorting trademark registrations. These 42 classes have fairly elastic borders. Taken together, they cover all of the goods and services in commerce.

Thus "acme.005" could serve as the domain name for a company selling ACME dietary supplements, while "acme.009" simultaneously could serve as the domain name for ACME computer software, and "acme.041" could serve as the domain name for ACME night schools.

Switching to this numeric TLD system would furnish many practical advantages. First, it would eliminate the congestion caused by the commercial cachet of the .com TLD. Second, increasing the number of available TLDs to 42 would reduce the "first come, first served" rush. Finally, as consumers grew familiar with the meaning of the numeric TLDs, it would become easier for them to surf the Net. Just as a consumer who sees a 212 area code in an ad realizes that the advertiser is a New York City-based company, a consumer searching for the Acme company in the wine business will look for "acme.033." If she is trying to locate the Acme company in the beer business, she'll point her browser to "acme.032."

Numbers are not universally popular, and doubtless many will object to such a change. A generation ago, many were outraged when telephone exchanges made a similar switch. I grew up near Lynn, Massachusetts. Local calls always started with "LY". After that, I had to memorize only five digits to remember my own and my friends' telephone numbers. But the world has graduated from such comfortably familiar conventions, and has learned to grapple with domestic calls involving 11 digits, and with international calls involving even more. Compared to that cognitive transformation, adopting numeric TLDs for web sites should be a piece of cake (which, by the way, might be found at acme.030).

Thank you for considering my comments.

Sincerely,

Lawrence J. Siskind

LJS:jd
Enclosures
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