DOMAIN NAMES

The necessity and significance of domain names (, for example) have been the source of the largest number of Internet-related conflicts [in 1997]. First and foremost are claims arising from alleged trademark infringement occurring when businesses want to use the same domain name or when one business uses a domain name that matches a registered trademark of another company. These conflicts may skyrocket in [1998].

The National Science Foundation, which has laid much of the groundwork for the Internet, has announced that it is exiting the domain name business and will not be renewing its contract with Network Solutions Inc. (NSI) when it expires [this year]. NSI has announced that it will continue its registry functions, however, and also claims that it has a proprietary right to the database of registration information necessary to route e-mail and Web traffic to a company or organization's domain.

An international ad hoc committee has been meeting in Geneva and has signed a memorandum of understanding with many groups to begin the implementation of a new mechanism for creating and managing new top level domains and for addressing domain name conflicts. However, there is significant objection to this approach by various parties, including the U.S. government, which, on the other hand, is contemplating antitrust charges against NSI (in addition to the class action suits that have been filed against the registrar).

Adding new top level domains is likely to increase the opportunities for trademark conflicts. This is obviously an important issue about which we will be reading and hearing much more in 1998.

OTHER INTELLECTUAL PROPERTY ISSUES

Copyright, trademark and unfair competition issues have always abounded by reason of activities on the Internet. Of recent interest are challenges that have arisen because of various linking activities on the Net.

Hypertext linking -- the very essence of the Internet -- involves the use of software and programming that allows a user to quickly move from one site to another. This has given rise to several interesting infringement problems. In general, the mere linking of one site to another is the sine qua non of the Internet and does not give rise to liability -- either on the part of the entity creating the link for impliedly adopting or sponsoring the information at the linked-to site, or on the part of the link creator for infringing the intellectual property of the owner of the other site. However, certain forms of non-consensual linking gave rise to claims in 1997.

For example, TicketMaster (and Paul Allen, a founder of Microsoft) sued Microsoft for linking to Ticketmaster's site. The case was settled but did raise the issue of non-consensual hypertext linking. Some critics believe this case challenged "the very essence of the World Wide Web." Fear created by such lawsuits, regardless of their merits, is already leading to the practice of "link licensing." Unfortunately, none of the suits have been litigated to a useful decision, though such a case may be in store for 1998.

Other forms of linking have sparked disputes too. Challenges have been made to the practice of "framing," which involves linking to another site but maintaining on the screen the link creator's own "frame" (and advertising) surrounding Web pages provided by the framed site. This practice has raised issues of misappropriation, trademark dilution, trademark infringement and unfair competition.

The World Wide Web was not designed with precise page layout in mind, and a successful win against framing would raise issues such as whether looking at a company's page on a small computer monitor, thus producing the same "detrimental" effect as framing, would constitute an infringement as well -- obviously a nonsensical conclusion. On the other hand, framing offers the potential for a legitimate unfair competition or false-attribution claim. It will be interesting to see how the courts