Re: [wg-c] A branded TLD would be .nsi

["Martin B. Schwimmer" <martys@interport.net>]

I'm not sure a point by point discussion is productive but when discussing
the "branding" of TLDs let's keep clear several distinct questions:

1.  Whether .com is today a trademark of NSI;

2.  Whether .web is today a trademark of CORE or IOD or no one;

3.  Whether TLD suffixes can theoretically function as trademarks;

4.  Whether TLD suffixes should as a matter of DNS policy be allowed to
function as trademarks.

The easiest question is no. 3, because it is certainly possible to posit a
set of facts where a TLD suffix functions as a TM (the easiest being to
take an existing TM - .mci, the other being taking an arbitrary term, .xyz,
and ICANN or whoever decrees that only X can be the register/registrar of
.xyz).

Questions 1 and 2 are mixed questions of law and fact I leave for the courts.

Question 4 is not really a TM question but a DNS policy question and I
refrain from putting in an opinion.

As to the other points, I did type in "identifier" when I meant to say
"administrator" so my point, right now, with these gTLD suffixes, they do
not by definition identify an adminstrator, they, by definition, identify a
domain.  As to arguments as to whether NSI has achieved secondary meaning
in .com, I think there is a pelthora of arguments to the contrary - the
advent of multiple registrars in .com pretty much being the show-stopper.

As to whether Sally Abel ever argued that a TLD cannot be branded as a
matter of metaphytsical trademark law, I believe that she was recently
quoted in either wired.com or news.com on the CORE/IOD matter, and that she
implied that there were plausibly circumstances where a TLD suffix could
function as a TM (and she was careful not to take sides).  Again, this is
different from a non-TM position as to the desirability of branded TLDs.










At 06:20 PM 8/19/99 -0400, you wrote:
>
>
>Martin B. Schwimmer wrote:
>
>> MM wrote:
>
>> >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.
>>
>> As branded by the TLD administrator's trademark.
>
>Not necessarily. Substitute the word "identified" or"distinguished" for
the word
>"branded" above and my point is
>clearer. The .web registry is basically the *only* place
>that knows how to resolve a domain name ending in .web.
>Therefore any domain name ending in .web is associated
>with the services offered by that registry. IOD or someone
>else can obtain trademark rights in .web by operating
>this registry. It is an identifer that distinguishes his business
>from another. They could argue on TM grounds, it seems
>to me, for exclusivity of registration services under .web--
>but not, of course, for exclusivity of the use of the term
>web or dot web.
>
>
>> Ambler's and NSI's claims
>> would rise or fall on issues other than trademark law.
>
>Based on the rationale above, why?And if you're right, which issues?
>
>> Not analogous, as in this case the DN owner doesn't wear the suffix,
>
>Aren't we being a bit too literal, here? It "wears" the suffix onits full
domain
>name.
>
>> often incorporates the TLD suffix as part of its mark, as in amazon.com or
>> drugstore.com or 1-800-flowers.com. PEPSICO, AMOCO, CITICORP and my
>> favorite, ESPRIT DE CORP are all trademarks which incorporate corporate
>> suffixes, which suggests why the suffixes themselves couldn't function as
>> identifiers of a single source.
>
>But a .com suffix clearly *does* identify a single source for
>registry services
>
>> >I would still like to see a TM lawyer explain why
>> >TLDs can't be branded.
>>
>> Has a TM lawyer argued that they can't (as opposed to arguing that they
>> shouldn't, on non-TM grounds)?
>
>Yes. I tihnk Sally Abel did. More significantly, I would have thoughtthe
TM/IP
>constituency would be more sympathetic to the notion.
>
>> No.  TLD, by definition, stands for top level domain.  .edu identifies the
>> domain, not the domain identifier.
>
>I don't understand this distinction.
>
>>  The adminstrators of .com, .edu, .org
>> and .net are not the same in 1999 as they were in 1991, and yet the TLDs
>> themselves are unchanged.
>
>The owners of brands may change? TMs can be bought and sold?
>
>> I didn't say that TLDs couldn't theoretically be branded.  They could be
>> branded. I understand that you are a big advocate of branded TLDs
>
>I am a big advocate of a non-uniform, heterogeneous modelfor DNS
administration.
>Let there be shared generics, branded
>ones, and everything in between.
>
>
>
>

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