Chapter 2: Competing Trademark Interests
COMPETING TRADEMARKS IN THE DOMAIN SPACE Since the inception of the domain name system there have been many examples in which several parties with legitimate trademark rights assert claims to the same domain name. One example is ‘delta.com’ in which a number of trademark holders have claimed interests, including Delta Airlines and Delta Faucets. The domain name system basically operates on a ‘first-come, first-served’ basis unless the first registrant is infringing on another’s trademark rights in bad faith. Where multiple trademark holders have the same or similar marks in different product markets or different geographic regions, the registration of a corresponding domain name by one of them is unlikely to trigger the bad faith requirements of the various regulatory mechanisms.1 ‘First come, first served’ as a registration policy has its limitations. In a contest between two or more parties, each of whom has an interest corresponding with the same domain name, the first to register generally will prevail, unless the parties privately agree to transfer the name. There is nothing necessarily wrong with this as a policy rule. However, it does highlight the fact that the rivalrous nature of domain names means that the system does not map well on to the trademark system. The trademark system allows multiple parties to hold the same mark, provided that they operate in different product or geographic markets, whereas the domain name system only allows one entity to register a domain name at any given time. This chapter considers whether there are better...
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