Playing the name game: a glimpse at the future of the Internet domain name system.

• Author: Gole, Rebecca W.

What's in a name! that which we call a rose by any other name would smell as sweet.(1)

-- William Shakespeare

1. INTRODUCTION

   While a rose may smell as sweet regardless of its taxonomy, when it comes to twentieth century communications, the Internet has shown that a name can change the scent of a company's commercial future. The Internet is quickly becoming the global medium for commerce, education, and communication. As the Internet continues to grow rapidly, individuals and businesses are racing to claim their own unique Internet address or domain name.(2) But these addresses are not just any names; they are often famous trademarks of United States businesses and corporations.(3) While this would not create a problem in the three-dimensional world since many businesses and individuals share the same name, on the Internet each domain name must be unique.(4) As a result of this requirement, a variety of trademark problems and disputes have arisen regarding the use of domain names.

   One of the most publicized disputes involves enterprising individuals who have capitalized on many corporations' belated entrances into cyberspace by registering those corporations' trade names or service marks first. For example, Princeton Review, Inc., a well-known test preparation company, registered the domain name kaplan.com, the trade name of its largest competitor.(5) In addition, domain name problems are occurring among legitimate users of the same trademark who do not usually compete in their ordinary course of business, but whose paths inevitably cross online.(6) Who should own the domain name delta.com when both Delta Faucet and Delta Airlines have a legitimate claim to the trademark?

   As a result of these trademark problems, businesses have begun to acquire desirable domain names at as rapid a rate as possible. For example, Procter & Gamble, a leading manufacturer of health and hygiene products, registered the names underarm.com and diarrhea.com to protect itself from trademark infringement, while Kraft Foods registered velveeta.com and parkay.com in addition to roughly 148 of its other product names.(7) This popularity of the ".com" name space has led to many of the domain name disputes at issue.(8) Overuse by American companies has become a source of resentment among the rest of the world's Internet users who usually register under their country codes, such as ".uk" for the United Kingdom and leave ".com" for multinational companies.(9) Such use, misuse, and even abuse of registered trademarks and the ".com" name space have helped prompt a proposal for the overhaul of the domain name system.

   Both the Internet Ad Hoc Committee (IAHC) and the U.S. government have submitted proposals for new domain name systems in an effort to balance the rights of trademark owners with those of domain name holders. The IAHC proposal not only recommends the creation of at least seven new generic top-level domains, but also attempts to provide answers to many of the current problems in the global marketplace through an online dispute resolution procedure and an international body of administrative law.(10) In contrast, the U.S. proposal entitled Management of Internet Names and Addresses, or the White Paper, proposes the creation of a nonprofit corporation to manage functions of the domain name system.(11)

   This Note examines the IAHC and U.S. proposals and presents additional changes necessary for the successful overhaul of the domain name system. Part II of this Note provides background information on the Internet and a detailed look at the current domain name framework. Part III provides a brief discussion of current domain name issues prompting the need for reform. In Part IV, current policies being used to solve domain name problems are discussed, as well as their shortcomings. Part V of this Note lays out the IAHC and U.S. proposals for reformation of the domain name system and explains relevant reforms. Finally, Part VI analyzes the two proposals and recommends additional provisions that should be implemented in order to have a successful global domain name system for the future.

2. BACKGROUND

   1. The Domain Name System

      Thousands of Internet sites have been created by businesses and individuals to provide consumers with information as well as new products and services.(12) Each site must contain its own unique address, and consumers must know the correct address in order to access these sites.(13) When an individual or business attempts to get users to visit its Internet site, it gives out its domain name.(14)

      A domain name is an easy-to-remember replacement for an Internet address.(15) When an individual or corporation registers for a domain name, it is actually assigned an Internet Protocol (IP) address such as 169.229.97.112.(16) This address "consists of several domains, `moving left to right from the most specific to the most general, with each domain separated by periods.'"(17) The Internet Assigned Numbers Authority (IANA) coordinates the system that allocates these IP addresses.(18) The IANA gives blocks of numerical addresses to regional IP address registries.(19) Larger Internet service providers then apply to these regional IP registries for blocks of IP addresses.(20) Then these Internet service providers reassign the addresses to smaller Internet service providers and to the end-users of the address.(21)

      Because IP addresses are difficult to remember, Internet users substitute unique "domain names" as pseudonyms for the computer's real identification number.(22) When a domain name is entered into a computer it is automatically converted into the numbered address, which contacts the appropriate site.(23) An example of a domain name is acme.com.

      A domain name is divided into at least two parts--a "top-level" domain name, and a "second-level" domain name.(24) Though a domain name is read from left to tight, an IP address is read from tight to left. Thus, in the domain name acme.com, the top-level domain name (TLD) is ".com" and the second-level domain name (SLD) is "acme." There are a limited number of top-level domain names currently in existence.(25) In each top-level domain there can be an unlimited number of second-level domain names, "but there can be only one of each particular second-level domain name in each top-level domain."(26)

      Four categories of top-level domain names currently exist. The first category consists of ISO 3 166 country codes. These include over 1 80 two-letter country code top-level domains such as ".fr" for France, ".ca" for Canada, and ".uk" for the United Kingdom.(27) Usually an entity must be located in a particular country if it wishes to obtain a domain name in the top-level domain of that particular country.(28)

      The second category consists of three top-level domain names that exist only in the United States. Theses are ".mil" reserved for the military, ".edu" reserved for educational institutions, and ".gov" reserved for governmental agencies.(29)

      The third category of top-level domain names are called "generic" or gTLDs.(30) There are currently three gTLDs including ".com," ".org," and ".net."(31) Anyone in the world, regardless of country, may register in these TLDs.(32) The TLD ".org" is technically reserved for nonprofit organizations, ".com" for commercial entities, and ".net" for networks, but people register in each TLD freely, regardless of the nature of the site since no checking is done at registration.(33) In actuality, ".com" has become the TLD of choice because it is so readily associated with commercial entities, and over one million Internet addresses alone end with the ".com" suffix.(34)

      The ".int" TLD may only be used by international treaty organizations such as the World Intellectual Property Organization (WIPO). As a further requirement, the name or acronym of the treaty organization must be used as the second-level domain, a restriction not practiced in any other TLD.(35) Thus, WIPO's domain name is wipo.int.(36)

   2. Domain Name Registration

      When an individual, business, or corporation wishes to obtain a site on the Internet, it is allocated an IP address.(37) As previously mentioned, the IANA has overall authority for administering IP addresses and domain names.(38) The Internet Network Information Center (InterNic), however, administers the central database and directory that contains a list of all Internet addresses and their corresponding domain names.(39) Since 1993, InterNic has given Network Solutions, Inc. (NSI) the authority to serve as the domain name registrar for the gTLDs ".com," ".org," and ".net" under the sponsorship of the National Science Foundation.(40) This agreement expired in September, 1998(41) but under the United States' new proposal for management of Internet names, discussed below, it is clear that NSI will continue to administer domain name registration during the transition to a nonprofit corporation system of governance.(42) Outside the United States, new entities have been appointed in individual countries to register domain names with ISO 3166 country codes and to manage that particular country's internet address system.(43)

      For the most part, the registration of domain names is done on a first-come first-served basis.(44) In fact, until July 1995, NSI would register domain names to the first person requesting them even if someone else owned the trademark on which the domain name was based.(45) In addition, the validity of applications has never been checked because NSI does not want to expose itself to liability in the event of a trademark infringement suit.(46) In the past, trademark problems were not a concern of the Internet community since academics and the military, rather than the commercial entities that populate the Internet today, used the network almost solely.(47) However, due to the dramatic growth of electronic commerce in the last two years, the Internet is undergoing a multitude of changes.(48) Originally NSI was...