In the Matter of DNS usage and "First Come, First Served"

[Paul Robinson <PAUL@TDR.COM>]

From: Paul Robinson <PAUL@TDR.COM>
Organization: Tansin A. Darcos & Company, Silver Spring, MD USA
-----
Someone whose name did not appear in the text of their message wrote on 
Namedroppers that he felt that the idea of "first come, first served" on 
access to domain names was acceptable "when the Internet was a bunch of 
geeks", but not when it moves into the real world.  (Or at least, this 
was the impression I got.)

Let's look at this a moment.  If we look at a couple of similar issues, 
trademarks and corporate names, there is an issue there that can be 
looked at.

In the field of trademarks, ownership of a mark comes with usage, e.g. by
using a mark, someone obtains ownership of it even if they never register
it.  Registering a mark gives notice of ownership and can give presumptive
validity in a suit that the party has the right to use such a mark.  I've
never had the money to have a federal registration, but I do have three
state registrations.  One is for "messages sent by computer"; I'll post it
at the end of this message to give an example. 

There has been an exception to allow registration of trade/servicemarks
before use at the federal level, but one still does not obtain full
ownership until the mark is used, and the registration will not help if
someone else was using the mark before the registration of intent to use
was published.  And you still have to refile and pay the fees again when 
the mark actually *is* used.

The whole point being that ownership of a mark is based on use.  Other
countries permit ownership based on registration but such a practice is
considered unsavory.  I believe a serviceman who traveled all over the
world during World War II went to various countries and filed trademark
registrations in various "file to own" countries for several U.S. marks
that were not registered in those countries.  When those American
companies started trying to go into business in those countries, they were
stopped by those countries due to the prior registrations.  (I'm not sure
what happened as a result of these incidents, whether they sued or paid
off the serviceman to buy his rights.)

On the other hand, corporate names are owned by registering the name
either just before or at the time the corporation is formed.  Ownership of
a corporate name is based on registration - one cannot use a corporate
name until after the corporation has been created - which doesn't happen
until the registration authority recognizes the filing. 

When someone files a trademark registration, they are saying they are 
already using the mark on their goods (or a servicemark registration for 
services).  This is a statement of a condition that already exists, and 
registration is used to confirm the condition and to announce it publicly.

When someone files a corporation charter, they are requesting registration 
of that entity based on the information given which is used to CREATE the 
corporate entity.  

Let's look at DNS registrations and see which of these is closer in
substance to what is happening. 

One can't register a corporate name until one has someone to serve 
process on it in case it is sued, or for the government to mail the tax 
forms and such to it.  

One cannot register a domain name until one has someone to accept DNS 
service requests about it in case someone sends it mail or wants to 
connect to a host on that domain.  One decides on a trademark or 
servicemark and starts using it, unless someone else complains that the 
mark is too close in usage to theirs.  Registration can occur any time 
from 15 minutes to 15 years or later after first use. 

A corporate registration requests creation of something that does not 
exist.  A DNS registration requests creation of something that does not 
exist.  A trademark registration attempts to record a statement about 
something which already exists at the time of the registration.

Corporate registrations are made on a first-come, first-served basis.
Corporations can request a registration for a name that they intend to use
when they create a corporation at some later date.  Some states charge a 
fee for this service, and some do not.

Therefore I think two (now obvious) things are worth pointing out here. 
First, DNS registration is very similar to corporation registration, which
is done on a first-come, first-served basis.  Ownership of a corporation
name in California will not prevent someone else from registering the
identical name in Nevada, Arizona Delaware or Maryland.  (The only
exception to this are corporations that have charters issued by the United
States of America (not to be confused with a corporation chartered in
Washington, DC which is not the same thing.)  As far as I know, no
commercial entity has a corporate charter issued by Congress.  There are
about 10 or so organizations that I know of that have Federal Charters,
including the 4H Clubs, the Boy Scouts of America, the FDIC, and a few
others.)

Generally, corporate names are not considered trademarks.  There can be
limited grounds for someone who is using a corporate name in one place to
be made to change it based on a law suit if it can be inferred that a
later party is using a similarity to a name of a famous company to "cash
in" on the reputation of the other company. 

If someone registers a domain name on the Internet, it can be accepted
even if someone else in the real world has a name similar to that
somewhere else.  As I mentioned earlier, Taco Bell has the registration
name of "OZARK.COM"; why, that, instead of the more obvious one, I don't
know.  If Ozark Airlines was still in business, they would not have a
right to use this name because they didn't file for it. 

The Internet is International in scope.  The U.S. Company, General
Electric has registrations for GE.COM as well as its broadcast subsidiary,
NBC.COM.  There is an unrelated company in Great Britain called "General
Electric".  They could conceivably register "GENERAL-ELECTRIC.COM" (It
just fits into the 16-character limit, but maybe that's a limit for the
whole name; or if that's too long, GEN-ELECTRIC.COM which *is* within
limits.) There was a big problem when Digital Equipment introduced the VAX
line of computers, only to discover that a British Company owns the 
trademark registration for the identical term for vacuum cleaners in the 
UK.

The Westinghouse Corporation has WEC.COM; however, the unrelated 
appliance maker "White Westinghouse" could ask for "WESTINGHOUSE.COM" and 
would have just as much right to ask for it and to use it.  

I did a whois on "GREEN-DOM" to see if anyone had "GREEN.COM".  Nobody
does (and with my record as happened with "BELL.COM" not existing when I
posted my message but did exist a week later, by next week someone will
probably file for it), but the following did come up using "GREEN" by
itself as the target: 

Green Bay Packaging, Green Diamond Data, Green Dragon Creations, 
Green Hills Software, Green Link, Green Mountain Geophysics, 
Green Mountain Power, Green Mountain Software, Green Shield Canada

If it wasn't too long, three of these companies could all argue the right
to "GREEN-MOUNTAIN.COM" (And the one who has the domain GREENMTN would
probably scream like a stuck pig, too!) All of them could easily justify
the right to the name "GREEN.COM" too.  The same applies equally to WHITE,
ORANGE, PURPLE or YELLOW.  (Someone already has RED.COM and BLUE.COM). 

There are only two possible choices: registration on a first-come,
first-served basis, or registration based on some arbitrary consideration,
such as the size of the company or the possibility that they may want it
later.  While this would help some companies who might in the future want
the domain or to exclude someone using something similar, such a policy
would mean that some companies would be denied use of a perfectly valid
domain name which is very common.  

It would help PEPSICO if someone else wanted to register, say "PEPSI.COM" 
by refusing that registration.

It would hurt American Coal and Coke to be denied the name "COKE.COM" 
on the grounds that Coca-Cola has a valid trademark for a product of 
the same name even though the term is generic for a type of fuel.

Does EXXON.COM have the right to stop XON.COM if one was issued?

My brother works for People's Drug of Washington, DC which is being 
converted to the CVS chain.  Would they, having been in business for 81 
years under the name "Peoples" be less entitled to the name than 
Peoples Natural Gas Company of Chicago?

Which of the following is entitled to stop use of or place a hold upon 
"PUB-SERVICE"?  Arizona Public Service Company (APSC.COM), 
Public Service Company of New Mexico, 
Public Service Company of Colorado (PSCO.COM), or 
Public Service Gas and Electric (of New Jersey) (PSEG.COM)?

Should AMERICAN.EDU be allowed to complain because there is now an
AMERICAN.COM? 

The simplest answer is that since domain name ownership is based on 
creating a registration, that First-To-File is the only workable 
solution unless we implement "preemptive registration" such as IANA has 
done by confiscating all 36 possible single character domain names (0..9 
and A..Z) in all 6 non-geographic domains (COM,EDU,INT,MIL,NET,ORG). But 
that action, I suspect, was done to prevent chaos, e.g. by preventing 
someone from creating a 0.0.0.0.COM to be nasty, and possibly to prevent 
fights over the very short names.

Then we have to ask on what grounds do we allow someone to confiscate a 
certain class of names.  We then end up with various political schemes to 
say that in some cases someone can preempt a name, and some times they 
can't.  Everybody Lock and Load: this could get ugly.

------
Paul Robinson - PAUL@TDR.COM
Voted "Worst Polluter of the IETF List" by Randy Bush <randy@psg.com>

This is one of my marks that I have registered, for the classification of 
"Messages transmitted by computer":
 
Paul W Robinson, is "TDarcos ... The Standard of Immorality"  or
Tansin Arogan Darcos of the District of Columbia Territory of the USA
"Grind our enemies into the dust, and drown them in their own gore."
"Exploiting humanity since 1986."
"Above all else...We shall go on..."
_"...And continue!"_

  - Servicemark Registered Commonwealth of Virginia, May 25, 1990; 
    Servicemark Registered State of Maryland, August 16, 1991