Who can stake a claim in Cyberspace - domain names & trademarks
Jason Romney (jromney@werple.mira.net.au)
Mon, 6 Nov 1995 01:17:56 +1100 (EST)
WiredLaw
Law for Entertainment and New Media
WHO CAN STAKE A CLAIM IN CYBERSPACE?
BY Michael Leventhal, Attorney at Law
In Romeo and Juliet, Shakespeare asked "What's in a name?" More and
more the 20th Century answer to that question is money. Today in
cyberspace, the name game is leading to some big bucks battles.
It is by now obvious to those in big business that the Internet will
be the next great business opportunity -- perhaps even the beginning
of a new economic order. It is also clear that the best way to truly
establish a presence on the net is to stake out your own territory by
creating your own domain.
Or is it obvious?
Recent research indicates that a significant portion of major
world-wide corporations have not yet established Net sites, leaving
pirates, competitors or even average cybercitizens to invade the
property and take it for their own. In fact, in an informal survey
conducted last August, the Hertz Corp., the Nasdaq stock market,
Viacom Inc., Coca-Cola Co. and others admitted they were unaware that
their names had been registered for Internet use by others.
To raise your flag on new territory in cyberspace, put your name (or
the name you choose) on the "land." But whose land is it? Is the first
person there the one with the right to claim it? Ask Washington Post
Co.'s Kaplan Educational Centers, who recently won what appears to be
the nation's first judicially determined decision on domain sites
against arch-rival Princeton Review. (Both companies market SAT prep
courses.) In order to grab a piece of Kaplan's market share, Princeton
had registered the domain name Kaplan.com. Kaplan argued that the move
violated laws of trademark infringement and constituted unfair
competition, and got an arbitration panel to agree, deciding that
Princeton Review must relinquish all rights to the "Kaplan.com" name,
and transfer it to Kaplan.
To register a domain name, you must file an application with the
Internet Network Information Center (InterNIC). InterNIC is a
registration service that currently acts as a clearinghouse and little
else. It does not have the resources to monitor registrations, but
will cancel an illegitimate or malicious application if it sees one
(see Sprint's registration of mci.com, revoked shortly thereafter).
About two to six weeks after filing, if your name clears, you should
receive notice that your application has been accepted and your name
added to the thousands of internet land-owners.
The question becomes, who, if anyone, has a pre-ordained right to set
up his or her cyber-residence at a particular address? What type of
right is it -- trademark? Property? Joshua Quittner, whose only known
connection to McDonalds is as a customer, writing in Wired Magazine's
October, 1994 issue, took the bull by the horns when he registered
McDonalds.com as his own address. For a while, he could be reached at
Ronald@McDonalds.com. Kaplan and Sprint are easy, but Quittner points
to a potential sliding scale in the freedom to register. Who can have
McDonalds.com if the Golden Arches have failed to get there first --
some guy named McDonald, some guy who likes the children's song, some
guy who loves Big Macs? These issues have yet to be sorted out by the
Courts, but rest assured they will give lawyers more opportunities to
earn their fees in the future.
And Quittner? After McDonald's unsuccessfully attempted to obtain the
domain name in court, Quittner named his price and McDonalds agreed.
The hamburger giant contributed $3,500 to a public school in
Brooklyn's Bedford Stuyvesant area for the purpose of setting up a
high-speed internet connection at the school. The connection will be
fast enough to run full-motion video. "One of the problems that
everyone has identified is the information haves and the information
have-nots," said Quittner. "Both McDonald's and P.S. 302 were
have-nots. Now they are information-haves." In this case, everybody
wins. As for future disputes, time will tell.
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