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The Law and Domain Names:
Are domain names items of property? Legally, the answer may vary from country to country, and in some countries from one judge to another. So we are not going to discuss how the question stands legally in any one country, but rather whether they should be defined as property. For the purpose of this article, I will use the popular definition of the word website to mean the content, rather than the location on the web. A website is obviously a property, i.e. the contents of those web pages are someone's creation and his intellectual property. The domain name under which the website is published is, of course, separate from the content itself. But is there a third entity, the internet location? If I own number One Oxford Street, London W1, I can benefit from that in different ways. I can use One Oxford Street on my letterhead as a famous address and attract commercial or other interest from people who will never visit the actual location. Or I can use what lies there (e.g. shops or offices) and benefit from actual visitors at such a prestigious location, like people trust doctors in Harley Street, for example. Or I can bring some stock in (say books or cars, obviously my property) and sell it from there benefiting from a different aspect of the location, the large number of passers by - something which also occurs at less prestigious addresses. This could give rise to three different kinds of tort. Someone else could, The first and second of these arise mostly from the fame of that particular address, nothing to do with anybody's commercial name, whereas the third mostly from the capital placed at that location. In the last two instances a benefit might be gained also from a name, the trading name on the shop-front, but that would be secondary. Benefit is mostly derived from the address or location. Let us now take a domain name. If I register the domain name TRAVEL.COM, I have acquired something very distinctive. It is a good address - that is an understatement. TRAVEL.COM originally cost the same to register as, say, JohnHigginbottom.com, but nobody can argue they have the same practical value. One is a prime location, the other like a back street shop in a small town. Millions of people browsing the internet will visit TRAVEL.COM before they know what is there, (flights, or suitcases, or good advice) whereas hardly anyone will visit JohnHigginbottom.com unless directed to go there for a specific reason. This is the opposite of the situation in the real world. In the real world John Higginbottom is more distinctive as a name than Travel. So there is an essential difference between names and domain names. Once you add the .com at the end, TRAVEL becomes far more distinctive and acquires intrinsic value. Not only it signifies and identifies something valuable, but also there can only be one in the world. This is not the same as the difference between the names MARLBORO and PATEL'S GROCERIES. The brand name MARLBORO has no intrinsic value, but has acquired huge value by identifying a brand; billions of dollars of advertising have been spent to make it valuable. Prior to that, MARLBORO had little value, even when first registered as a business. TRAVEL.COM has intrinsic value. People will "visit" it, regardless of lack of advertising, regardless of who owns it and before they know what is being sold from there (whether flights, suitcases or advice on safety and the counties of the world, etc.) I say, therefore, that the domain name TRAVEL.COM is not as much a valuable name (like MARLBORO) as it is a prime location. It is like owning One Oxford Street (not a name), and never mind what is being traded from there or what brand trades from there. People browsing the internet, like passers-by, including tourists from all over the world, will enter TRAVEL.COM, even if out of curiosity, as they would enter a store in 5th Avenue New York, which store they have never seen advertised, and do not know what it sells - JUST BECAUSE IT IS THERE - regardless of its name. So TRAVEL.COM bears a closer analogy to a geographical location than it does to a name. A different example is EGG.COM. This time people are unlikely to visit randomly if they have not heard of the site - certainly not looking to buy eggs; they will visit mostly after advertising. Even so, EGG.COM has intrinsic value, like TRAVEL.COM, different from that of a brand name. You could take up a full page in a newspaper with just the word EGG.COM, or display the domain name EGG.COM for thirty seconds on prime time television without any further explanation, and receive considerable commercial benefit; something you could not do with EGG LTD. People would need further instruction as to where, why and how to interact with EGG LTD, whereas internet visitors can go to EGG.COM immediately they have seen the advertisement, and they can trade with EGG.COM straight away. EGG.COM is profoundly different in essence from EGG LTD. This time it is not like a shop in a famous high street which passers-by visit anyway, but more like the Lloyds building in the City of London: you cannot tell from the outside what service they provide but, once you have seen it (or a photograph of it), it is so distinctive you want to find out. Once again, therefore, the analogy is closer to a geographical feature, a location, a physical property or an address, rather than a brand name. I could give additional examples of completely made-up names (I have just made up KOMPUTERING.COM for the sake of this paragraph, not a word in any language nor a combination of existing words) which may be so original and striking that they become instantly distinctive and recognisable, and demand attention, with instant access to trade with the registrant, in a way registering a limited company or trade name would not do. Such domain names are more like setting up a striking, attention-grabbing shop front in the real world, regardless of its trading name. If, then, one invented a distinctive domain name and then discovered that upon registering it, it became the property of someone else, perhaps the internet service provider, or nobody's property so that the service provider could just hand it over to anyone on expiry of the current registration, if he so wished, that would violate every legal principle and fundamental right - it would be against natural justice. I believe, therefore, that domain names are items of property by their very nature. A domain name is too short to be copyrighted so it must be granted some other form of protection, and the best option is to treat it like the ownership of an address. Already, we recognise some forms of what we call cybersquatting, i.e. registering a domain name that benefits from someone else's brand, good will or fame. The above example of One Oxford Street shows there can be other kinds of cybersquatting, in some ways the reverse situation, and they need to be addressed equally. I understand the legal problems it creates too, but I want to establish principles here, not solve secondary legal technicalities. The situation is not like that of telephone numbers which can be given out by service providers randomly to anyone, each number revealing no particular significance - they cannot signify anything by themselves. If a telephone number ends up being identified with a particular brand etc, this can only happen after extensive marketing or publicity by that brand, so it bears no analogy to an instantly identifiable domain name as shown above. Very few, if any, will ever ring a telephone number randomly to see if there is anything there they can buy. There is simply no comparison between telephone numbers and domain names. The internet is a construct of the modern era; it would be inappropriate to adopt an archaic approach and leave such questions to the courts for case law to build up. The issue needs international agreement and co-operation by treaty, because of the very nature of the internet which has no boundaries. The rightful registrant of a .co.uk name can be resident in the United States (or anywhere else) and this could create irrational and unnecessary international conflicts. Governments need to act.
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