Kent Crispin wrote:
<snip>
> Neither the gTLD-MoU (note, by the way the "gTLD" part of the name),
> nor ICANN, claim "ownership" of the name space, and the very notion
> is almost totally meaningless.
>
Precisely. But there's a lot of other people who disagree.
Using certain characters as a trade-mark does not give the user ownership of
that particular combination of characters, any more than use of certain
characters as a domain name gives the user ownership of that domain name.
Certain rights to exclusive use of certain characters in certain contexts
are available through trade-mark law, but the nature of the property
interest granted is not ownership. Trade-marks can be used, not owned.
Registered trade-marks can be held, not owned. Trade-marks can not be
bought or sold. Trade-mark registrations can be transferred as a
consequence of private transactions or court orders, provided the trade-mark
registration authority recognizes the transaction or court order and records
the transfer. Almost the exact same analysis applies to domain names. The
only difference is that the monopoly-granting registration authority is a
public agency in the case of trade-marks. NSI used to have the dint of
public authority behind it. ICANN (actually its licensed registrars) will
be in the private monopoly-granting business. This should make for
interesting times.
Anyway, back to my rant. Sloppy statements like "I own the trademark for
WonderBumf" or "I bought the domain name <bumf.net>" are legally
meaningless. They only further the twin popular misconceptions that domain
names are trade-marks and that domain names can be owned.
Professor Mueller suggests that we figure out what the relevant property
interests are and move on.
The problem is that using the word 'ownership' with reference to any
Internet elements other than hardware and proprietary software contradicts
the nature of Internet names and numbers as globally shared public
resources. The big hoo-ha right now is over assignment and exclusive use of
Internet names (and to a much lesser extent numbers), *not* ownership. I
hate to say it again, but you don't pay annual fees to keep things you own.
The concept of ownership has no place in this discussion.
Domain name registrations can be held, not owned. If the Virginia State
Court in the Umbro case said that domain names are property which are
susceptible of ownership, it was wrong. If it said that domain name
registrations can be the subject of an order for garnishment and/or judicial
sale because they sometimes have market value and therefore behave like
property, then it was right. But that doesn't mean that anybody owns the
domain name in question.
Nobody, not ICANN, NSI, the estate of Jon Postel, nor even the USG, owns the
name space. If portions of the name space can be owned, then we first have
to figure out who owns which ones. We don't want to do that. Fortunately
you will rarely find the word 'ownership' in USG or ICANN documents, the
drafters of which recognized that the name and number spaces are global
public resources. That means we have to find a way to share them, instead
of a few owning them and renting them to everybody else. There is a lot
more than semantics at stake.
Craig McTaggart
Graduate Student
University of Toronto
Faculty of Law
[EMAIL PROTECTED]
