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Understanding what domain names do

I intend to testify that a proper understanding of the functions and actual uses of domain names makes it clear that they are not source identifiers, and that the possession of a domain name corresponding to a trademark by a party that does not hold the trademark does not by itself cause diversion or confusion. I will also testify that it is important to distinguish between the search and identifier functions of domain names.

Domain names serve two distinct purposes for their users.

Note: A third function, not relevant here, is to provide a unique identifier that serves the purely technical function of a globally unique "address" that guides information packets to their proper destination. In this case, it is the uniqueness of the particular string of text used that is critical, rather than the meaning. Two domain names that may seem semantically identical - such as amazon.com and amazom.com - are, from a technical point of view, as different as abc.com and xyz.com - just as getting one digit wrong on a telephone number is a completely wrong number. In discussing the functions of domain names in the main text above, I am concerned exclusively with their usage by humans and not with their technical usage by machines on the Internet.

Domain names can perform search functions when they are used to locate web sites (or other online service) for the first time. In the paradigmatic case of using domain names as search aids, an Internet user who wants to find Henry Mishkoff's web site makes some guess about what she thinks the address will be (e.g., <mishkoff.com>) and types that into the URL bar of her web browser. In effect, the second-level domain name is used as a keyword (or what information scientists refer to as a search token), with .com the default value for the top level name.

Domain names also serve a distinct, separate function related to their status as names. Domain names are memorable identifiers. By that I mean that they perform the same function as a telephone number, but are semantically meaningful because they can use alphanumeric characters as well as numbers. The registrant of a domain name uses them to advertise and communicate their Internet location, and the registrant's communication partners store them or mentally remember them for use when they want to find the registrant's Internet location. As an example, if I see an advertisement for "The Shops at Willowbend Mall" the ad likely has a web URL containing a domain name on it. Once I see the URL I know that if I want to go to the Mall's website, I should use the advertised identifier. This function is distinct from search: it is important even when users already know that a web site exists, have already visited it before, or have already been exposed to advertisements from the web site's owner telling them what the domain name is. The memorable name makes it easier to remember, type, record, and retrieve the information needed to find the site. When performing this function, the domain name need not correspond to, and often does not correspond to, the actual name of the source or a trademark. As memorable identifiers, domain name usage puts a high premium on shortness as well as meaning. Ceteris paribus, a short domain name is easier to use because it is easier to remember, takes less work to type in than a long domain name and one is less likely to make errors. Thus, many companies with long or potentially confusing corporate names use very short domain names as their primary identifier; e.g., Merrill Lynch publicity broadcasts the domain name <ml.com>, not the domain <merrilllynch.com>. I note with some amusement that the plaintiff in this case does not rely extensively on the disputed <theshopsatwillowbend.com> name, but uses the more economical <shopwillowbend.com>. That domain name is not trademarked. In fact, at the time of this writing the domain name corresponding to the trademarked term "The Shops at Willow Bend" does not work.

This second, more basic, naming function is why domain names really exist. As the developers of the domain name system protocol have asserted repeatedly, the domain name system was not designed to be a directory or search tool.

Note: See Paul Vixie's 1995 article, John Klensin's reflections on the domain name system, and Jon Postel's 1994 statement in RFC 1591.

Its usage in that capacity was a historical accident and was largely temporary in nature, although it has had lasting effects due to its mistaken embodiment in some legal opinions.

Note: I am referring specifically to the Brookfield Communications, Inc. v. West Coast Entertainment decision (174 F.3d 1036), which states that "web users often assume, as a rule of thumb, that the domain name of a particular company will be the company name followed by a .com". No systematic empirical evidence quantifying the validity of this proposition is available.

Many legal debates and discussions of domain names tend to conflate these two distinct functions (searching and memorable identifier). That conflation is at the heart of this case. They assume that registration of a domain name somehow gives the registrant sweeping, almost magical powers to collect or intercept traffic from anyone who might be searching for the named entity. This assumption is false. As we shall see in the next section, domain names are a poor search tool and are no longer commonly used for that purpose. The overemphasis on the search function, and the confusion of search function with the memorable identifier function, tend to trivialize or obscure the reasons why users might want to register domain names for purposes of nominative reference or free expression.

Next: Search and Guessability

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