Dot-com addiction

The resolution of a few domain-name disputes offers some breathing room in the crowded Net name arena. But is it enough?

Published February 16, 2000 5:00PM (EST)

3D Studio: quick, what is it? Industrial design software or a community of graphic artists who trade their work online?

Both answers are right, and thanks to some fleet-footed compromising, neither will be stricken from the Net's record, nor forced to find a new name. Last week, Autodesk, which sells 3D Studio software dropped its threat of a trademark infringement lawsuit, allowing to peacefully co-exist -- as long as the community site runs a disclaimer clarifying that it is not related to Autodesk's product.

By allowing for more than one use of a name, this compromise and several others like it offer some breathing room in the crowded dot-com name space, and revive hope in the Net as a home of both copyright and community. But it is an exception to the trademark-sensitive domain turf, where most corporations try to demand unparalleled respect for their names. On the Web, corporate minds assert, "Amazon" should always refer to the e-commerce giant, not the river, not warrior women -- certainly not a feminist bookstore, at least not without a court battle.

That kind of thinking, which has caused corporations to snap up every domain that sounds remotely like their name, combined with the finite number of dot-com addresses and more than a few cyber-squatters who snatch up catchy-sounding names, has led to a perceived shortage of Web addresses for the expanding universe of home-page builders and Net entrepreneurs. "You can't type a noun from the Webster's dictionary, or even a combination of words from the Webster's and find it available," says Sean Foote, a partner with venture capital firm Labrador Ventures.

The "shortage" is one of the issues that Internet Corporation for Assigned Names and Numbers, ICANN, agreed to tackle in 1998 when Congress charged the nonprofit with coordinating the management of the domain name system, IP addresses and the root-server system.

But the volunteer board that directs ICANN is moving at a sloth's pace. One idea that the organization is promoting is the creation of new top-level domain names (TLD), such as .store or .arts. But even ICANN insiders say they don't expect to see these new domain suffixes until next year -- if ever. And critics contend that the group is so biased toward trademark holders that even if the new categories appear, there's a good possibility that corporations will again take over the vast majority of available real estate.

Esther Dyson, chairwoman of the ICANN board, says trademark holders do deserve protection -- but that they, like everyone else online, need to learn to compromise. "The real problem is not the shortage of name space, but rather the shortage of names in people's minds," says Dyson, whose reputation as a technology visionary has been overshadowed by her new role as wrangler of all the conflicting interests in the domain corral. "That's what this is all about. You perceive a right to the name space, and you want to claim it as your own."

"ICANN is now essentially an organ of the trademark lobby," says Karl Auerbach, a former professor of computer science at the University of California at Los Angeles, an attorney and a friend of Jon Postel, the late head of ICANN's predecessor, the Internet Assigned Numbers Association. "[Jon] would have been appalled at what ICANN has become."

As if to confirm Auerbach's position, ICANN spokeswoman Pam Brewster says that the group will only consider releasing the new top level domain names if trademark holders are given "famous name exclusions," which would allow them to get first dibs on the new domains, or to get some other form of protection from cyber-squatters.

"It's kind of a standoff," says Brewster. "The corporate and trademark interests won't go with new TLDs until they have protections."

Something has got to give. Since ICANN is making such slow headway, it seems likely that the movement will have to come from Web users. Either we need to see more settlements like the 3D Studio case, in which trademark holders loosen their grip just a bit -- or the larger Web community needs to get over its dot-com obsession.

The dot-com addiction, however, may prove difficult to give up. "As long as consumers have the habit of typing dot-com into their browsers, I'll tell my companies to make sure they find a dot-com name," says Foote, the venture capitalist. But even as he encourages the frenzy, he recognizes that entrepreneurs are being hobbled by dot-com's limitations. Instead of spending time on business plans, they're staying late to come up with a corporate moniker.

"Naming is consuming a lot of entrepreneurs' time, and this is just naming, separate from developing a brand," Foote says. "If I wanted to start a plumbing company, I'd go down to city hall and register Foote Plumbers. If it was taken, I'd go with Foote and Sons." Trademark is governed by geography, (often a trademark is only protected in the business's home state) and "class" (which allows for 42 companies with the same name, if they're all selling different products -- so that Foote & Sons bakery and Foote & Sons plumbers could reside on the same street.) "But now instead of just looking at trademark registries, companies have to find domain names."

That can be a time-consuming and expensive task. Take, a moving services company that Foote invested in. Initially, the company was called Startsmart, but Foote thought the name related to raising children, and other people reversed it, calling it Smart Start, which is a Kellogg's cereal.

So the company tried to find a new name. After discovering that its first 10 choices were taken, executives enlisted a dozen employees to brainstorm and came up with 285 names. Of the top 30 -- getmoving, imove, emove, yourmove, waytogo, freshstart, getupandgo, movezilla, among them -- only eight were still available as dot-com addresses.

"So after six months, and with the efforts of 12 people, they're now changing their name to," Foote says. "It was a major process."

And to a certain extent, got lucky. At least its name corresponds to its product. What about start-ups like Kabanga, or Monkeyrules? Try and guess which one sells software for e-commerce merchants, and which caters to restaurant-goers. (Hint: Monkeyrules will help satisfy your hunger).

Some companies choose odd names intentionally., for example, didn't want a name that had anything to do with gift certificates, its primary product. "Look at Yahoo, eBay and Amazon," says Jack Feuer, Flooz's vice president of marketing. "They're the strongest brands on the Web, and do those names mean anything? No."

Plus, tying the company's title to gift certificates would limit Flooz's options, Feuer says. Still, the fact remains that Flooz didn't have much choice in the matter; just about every dot-com address that sounds related to gift certificates had been taken by the time the company hit the market last year.

Dot-com scarcity produced a different problem for Autodesk and The3DStudios, and for a group of Swiss conceptual artists who own the domain and spent five months battling online toy seller eToys in court. With over 9 million dot-com domains already registered, there is hardly a free address left -- and that means that no matter what name you choose for your Web site, someone else is likely to own a trademark or a Web address that is the same but for a letter or two.

Etoy stands as an especially powerful example. In November, the eToys retailer sued the etoy artists for copyright infringement and won an injunction that temporarily shut down the artists' site. But soon after, etoy mobilized the Net community to take up the cause of a small group of artists who had secured its domain name long before the toy seller had heard of e-commerce; Webheads responded by bombarding eToys with e-mail. Jonathan Cutler, an eToys spokesman, says that the company listened intently to these comments, and that they played a role in the company's decision in late January to drop its case, and to pay $40,000 for the artists' legal expenses.

Though Martin Konopken, chief counsel for Autodesk claims that the etoy-eToys battle had nothing to do with Autodesk's decision to forgo litigation against The3DStudio, he figures there will be a lot more settlements. He says it's too expensive and too time consuming to go after every Web site that seems to infringe on a company's copyright.

"I think (out-of-court settlement) is the way things are going," says Konopken. "If you take any trademark of any company, the number of variants on domain names can be quite vast, so for companies to track every one would cost too much. You have to go where the real problems are, and leave the rest."

Even Dyson, ICANN's chairwoman, has admitted that companies need to grow up, and face the reality of more domains. "Companies need to acknowledge that there is more than commercial space," she says.

By Damien Cave

Damien Cave is an associate editor at Rolling Stone and a contributing writer at Salon.

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