RE: [wg-b] Position Papers

["Hartman, Steve" <HartmanS@Nabisco.com>]

As others have pointed out, the non-commercial proposal for a .fame domain
would not prevent the misleading use of famous marks in domain names. The
non-commercial proposal states that rules should be established to resolve
conflicts between domain name disputants. One factor such rules would have
to take into consideration would be whether the domain name over which there
is a dispute is a recognized trade designation and how well known it is.
Therefore, the non-commercial proposal begs the very question wg-b is to
address.

The assertion that famous mark holders seek to remove words from the domain
name dictionary is inflammatory and misleading. For one, there are different
kinds of famous marks (as there are different kinds of marks generally).
Some are fanciful, made-up terms, which never were never words in a
language. I would like to believe, being trademark counsel for Nabisco, that
Nabisco and Oreo are famous marks. Oreo is not and never was a dictionary
word. The same is true for Coca-Cola, Exxon, and Kodak, arguably famous
marks. Other possibly famous marks are proper names of one sort of another,
but not dictionary words: Marlboro and Mars come to mind. The removal of  a
term from the domain space does not necessarily mean the removal of a
dictionary word from the domain name space. Removing a non-dictionary term
from the domain space will generally not interfere with the communicative
value of the Internet. There are infinitely many non-dictionary terms to
chose from.

More to the point is that domain names are more than addresses; they serve a
communicative or advertising function and, to the extent they do,  are
hybrids of addresses and trademarks. Trademark owners are concerned that
their trademarks will be used in domain names in a misleading or deceptive
manner. Famous mark are especially vulnerable to such abuse. Protecting
famous marks from their misleading use as domain names protects the
communicative value of the Internet, and therefore should be a goal not just
for trademark holders, but for everyone interested in preserving the unique
phenomenon the Internet is. To allow only the owner of trademark Exxon to
own Exxon.[anything] probably makes sense.  The domain space is not being
deprived of a dictionary word, so the communicative value of the Internet is
preserved. Indeed, by eliminating those domain names (eg, Exxon.anything)
that have the greatest potential for confusion and deception, the
communicative value of the Internet is enhanced.

In evaluating the various proposals we should focus on the proposals that
promote the communicative value of the Internet.
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