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Domain Names as "Source Identifiers"

I will testify against plaintiff's assertion that "domain names, like brand names, function as source identifiers and are not entitled to the protections of communicative speech." Domain names are not source identifiers. There is no doubt that some domain names relating to Internet-only businesses acquire that function as secondary meaning, such as <amazon.com>. But the fact that becoming a source identifier occasionally happens to a domain name does not prove that domain names are, in and of themselves, source identifiers. "Prince" is a very strong trademark for sports equipment, but there is no guarantee that you will find that business, or even any business named "Prince" at the domain <prince.com>. (Try it) Actual facts about registration and usage belie the plaintiff's contention that domain names have some special status as source identifiers. About 20 percent of generic TLD domains are registered to individuals.

Source: Network Solutions, dotcomstats

There are only about one million live registered trademarks in the United States. Yet there are over 25 million domain names registered to US individuals, organizations, or companies. How can one explain this disjunction if domain names are source identifiers? There are millions of generic words registered as domain names: from jesuschrist.com to <[obscene word of your choice].com>. These registrations do not identify sources of goods or services; they have been registered for their ability to attract traffic and for their memorability. Many domain names are statements or expressions, such as <stopworldwar3.com> or <stopcensorship.com>. Technically, domain names are just unique, hierarchically organized character strings, but humans have an incentive to register and use meaningful strings, and one can do with domain names anything one can do with any meaningful, limited set of characters.

There is no technical, legal, or logical linkage between the use of a source identifier and the registration of a domain name. Companies with a strong brand may choose not to register the corresponding domain name at the second level in all available TLDs. Companies with trademarked names may choose to register unrelated domain names and point them toward web content that contains source identifiers. (For example, some time ago Proctor and Gamble registered <badbreath.com> and pointed it to their corporate home page. They have since sold off the name, corroborating my assertion that there is a trend away from use of domain names as search keywords.) Likewise, there is no technical, legal, or logical connection between the registration of a domain name and the possession of a source identifier corresponding to the domain name. Under open generic TLDs such as .com, domain name registration occurs largely on a first come, first served basis. One needn't show any products, services, or trademark rights to register domains. Someone without any products or services to sell may register a domain name because it catches their fancy, is their own nickname, the name of their child or pet cat, or to make a reference to the named entity for discussion purposes.

Consider the term "digital convergence." I have registered the names <digital-convergence.org> and <digital-convergence.info> and use them as the address of my university-based research center. Mr. Andy Covell has registered <digital-convergence.com> and uses the corresponding web site to promote his book Digital Convergence: How the Merging of Computers, Communications and Multimedia is Changing our Lives. A commercial company that produces consulting services relevant to converging information industries has registered digitalconvergence.net. In none of these cases does the domain name function as a source identifier. "Digital-convergence" is not the name of my university-based research center, it is the name of the phenomenon our Center investigates. "Digital convergence" is not the name of the publisher or the author of the book - it is not even the precise title of the book, which would be too long to make a useful domain name; it is, rather, a reference to the topic of the book. Digital convergence does not identify the source of the consulting services; it is what the company consults about. A very large number of domain name registrations follow this pattern. They refer to things, they do not necessarily identify the source of things. And it is possible for different registrants to refer to the same thing using slightly different domain names - e.g., by using different TLDs, different permutations of characters, and so on. That is a feature of the domain name system, not a bug.

The database of all registered domain names can be more accurately characterized as a heterogeneous combination of:

  • Library catalogue of publications or book titles
  • Organization name registry
  • Vanity license plates
  • Trademark/brand name registry
  • Keyword system for searching
  • Billboard/bumper sticker for making statements

Any statement that domain names are only one of these things is plainly wrong. There are simple existence proofs that decisively refute such assertions - that is, for each such characterization, one can identify numerous domain names that plainly do not fit the bill. Given these heterogeneous functions of domain names, I see no reason why Henry Mishkoff's <shopsatwillowbend.com> cannot peacefully co-exist with plaintiff's official site of the Mall <shopwillowbend.com>, provided of course that the content on the website and the actual use to which the name is put do not constitute trademark or copyright infringement.

Note: If it does violate copyright and trademark norms, the offending conduct can be prevented without necessarily transferring control of the domain.

I can state categorically that our research center has never been bothered by its lack of control of quite similar domain names referring to different organizations or products. This is so even though, unlike Mishkoff's site which includes a prominent notice identifying the "official" mall website and a hyperlink to that website, those whose websites have domain names similar to ours provide no indication of our existence and no easy way for mistaken visitors to their site to find us. I am aware of one or two cases in which people looking for us have gone to the book site, and yet they had no trouble quickly discerning that it was not the site they were looking for and correcting their search. Most referrals to our web site do not come from blind guesses. They come from people who have a copy of our brochure, from links generated by publicity emails or news articles, or from search engines. I suspect, but of course have not conducted an empirical study, that the same is true of plaintiff's Mall site. If plaintiff is waiting for people to guess its domain name, it will miss far more customers to bad guesses than it will to Mishkoff. For it seems likely that more customers would guess <willowbend.com> or <willowbendmall.com> than <theshopsatwillowbend.com>. Of course, the notion that enterprises with multimillion dollar advertising budgets rely significantly on guesswork to locate and direct customers is implausible on its face. And because Mishkoff's "disclaimer" is so high on the home page - the location most web users notice first - and so distinctly colored, any visitors who really wanted to get to plaintiff's own website will be directed there immediately if they did arrive at Mishkoff's site.

Next: Domain Names and Freedom of Expression

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