Re: [wg-c] Re: Where has NSI claimed that it "owns .COM" ?

[Milton Mueller <mueller@syr.edu>]

Martin B. Schwimmer wrote:

> In its trademark applications for DOT COM MAIL, DOT COM DIRECTORY, DOT COM
> PEOPLE and DOT COM TOOLKIT.
>
> As an aside, Sun has filed for "We're the dot in dot com" and Imedia has
> filed for "We're the com in dot com."
>
> Assuming for the sake of argument, that NSI did claim trademark rights in
> .com, then it could be argued that someone who used .com as a trading name
> was a licensee, so amazon.com and sexwithanimals.com (it exists) would be
> licensees of NSI.  However NSI has repeatedly stated that it is not
> responsible for the content of web pages, so i guess it doesn't exert
> quality control on its licensees.

There is some confusion going on here.
(And this aspect of the issue IS relevant to this WG)

Does Martin understand what a "zone file" is and
what it means to administer one exclusively vs.
shared? (No offense intended--we just need to know)

NSI's trademark applications for trademarks on words
such as "dot com mail" et al
are not the same thing as an attempt to establish
exclusive rights to administer a zone file. The example
of Sun makes this clear--you can trademark some
slogans or marks with "com" in it without even being
in the registry business.

Both Ambler and NSI want to be the exclusive registry
for a specific TLD string, .web and .com respectively.
Those claims as I understand them in no way involve
a claim that the string ".web" or ".com" belongs to them,
whenever they are used. It is simply a claim that
no one else can register names under .web and .com on
the common root of the Internet. It is a claim to exclusivity
of a certain type of service as branded by the TLD.

Thus, I don't think anyone using a domain name under
.com needs to be considered a licensee of NSI, anymore
than a basketball player wearing Nike shoes needs to be
licensed by Nike. (Indeed, the money flows in the opposite
direction: Nike pays the player to wear the shoes in
public, not vice-versa.)

I would still like to see a TM lawyer explain why
TLDs can't be branded. I see utterly no distinction
between the association of a trademark with the
administration of a zone file and the association of a
trademark with any other good or service. Because the
TLD is, by definition, the identifier of the administrator
of the zone file, and because there is no portability
across registries, such branding helps consumers to
identify the origin of a service. All the rationales for
trademark protection apply.