Internet Domain Names, Trademarks and Free Speech

Internet Domain Names, Trademarks and Free Speech

Elgar Intellectual Property and Global Development series

Jacqueline Lipton

This comprehensive examination of domain name disputes involving personal names and political and cultural issues sheds light on the need to balance trademark policy, free speech and other pressing interests such as privacy and personality rights. The author stresses that because domain names can only be registered to one person at a time, they create problems of scarcity not raised by other forms of digital assets. Also discussed are the kinds of conflicts over domain names that are not effectively addressed by existing regulations, as well as possible regulatory reforms.

Chapter 7: Domain Name Theory

Jacqueline Lipton

Subjects: law - academic, intellectual property law, internet and technology law


THEORIES OF DOMAIN NAME REGULATION Previous chapters have examined the existing regulatory matrix for domain name disputes, which is focused largely on the protection of trademarks and some other interests (such as personal names) in the domain space. It has become apparent that there are limitations within the current regulations both in terms of scope and in terms of focus. While the regulations have focused predominantly on trademarks, little thought has been given to the protection of other competing interests in the domain space, such as free speech and other cultural and geographic interests in particular words and phrases. There are other limitations inherent in current domain name regulations, several of which are beyond the scope of this text. One of the limitations arises from the question of who, if anyone, has constitutional power to make general policy for the domain space. While ICANN administers the technical side of the domain name system, its bylaws limit its policymaking role to ‘policy development reasonably and appropriately related to [its] technical functions’.1 Domestic legislatures and courts can only reach disputes within their jurisdictional competence. In the absence of a central policy-making body, each entity dealing with domain name conflicts can only address a small piece of a much larger puzzle. This can easily result in a domain name market that is regulated inconsistently, often leading to wasteful uses of potentially valuable online assets. The domain space potentially becomes clogged with registrations of multiple domain names by speculators who, more often than not,...

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