Trademark.com: Trademark Law in Cyberspace

Abstract

his article examines the current issues in trademark law surrounding internet domain names. The author introduces the topic with a detailed explanation of the use and purpose of domain names, the significance of the various levels in domain names and how domain names compare and contract mth IP addresses. Of significant difference is the use of words and names in domain names. Organizations often use recognizable and familiar names to improve the chance Internet users will access their websites. Trademark issues are sparked by the battle to obtain and/or retain these highly sought after domain names. The author discusses the areas of conflict when: I) a domain name is registered by an individual who has no connection with the mark, 2) two or more organizations have claims to the same domain name, 3) one domain name is confusingly similar to another, and 4) when second level domain names can be assigned to multiple first level domain names. Two essential legal issues are identified: whether domain names are protectable as trademarks and whether a domain name can violate a trademark. Courts have used the analogy of telephone mnemonics to help answer these issues in favour of recognizing mnemonics as a protectable trademark, although there is split authority on how much protection can be given to domain names that incorporate generic terms. Trends in litigation in the United States, Canada, and the United Kingdom are discussed. Despite the de facto judicial power given to NSIfor dispute resolution, the author identifies fundamental flaws of the NSI policy owing the current controversies over Internet domain names. The article concludes with a discussion of several major proposals to implement changes regarding domain names allocation.