To encapsulate the expert witness, Mr. Milton Mueller's*, deposition in the
TaubmannTaubman Company Vs. Hank Mishkoff case:
Domain names perform three functions:
1. As a means for people to find you
2. As a memorable identifier - of an author or a book, say
3. As a unique address that guides information packets to their proper destination (this is a purely technical function and not relevant to our discussion)
Let's examine the first two functions in brief:
1. As a means for people to find you
In the early years of the internet, when Search Engines weren't so good, people usually took a guess at what a URL might be and typed it, suffixed with a .com, in the browser's URL window. Thus, someone searching for me, presuming I am famous enough for that, might guess that my website is www.deepakmorris.com and type that in the URL window. If that didn't work, they might try a couple more times using .net or .info and then give up.
That was why domain names were vitally important and cybersquatters were demanding exorbitant sums to give up domain names that they owned.
Now, however, seekers are more likely to type the words they seek into a Search Engine box and get to the page they want that way.
(This has indeed happened in my case, when a few people looking for theatre opportunities in Pune saw my name in the newspapers, typed the name into the Google search box and found my website).
The next part is so important, I'm quoting it verbatim from Mr. Mueller's deposition:
"To my knowledge, there is no empirical research supporting the assertion that Internet users cannot distinguish between a domain name that points to a site they want and a domain name that refers to the same thing but is not the site they want. Indeed, arriving at the wrong web site because of typos, clicking on the wrong link, or some other mistake is a common experience of users. My impression (but I lack systematic empirical research on this topic) is that most users simply back up and keep searching, unless of course the site is deceptively confusing. To my knowledge, there is no research that refutes that common-sense expectation. The application to the Internet of the concept of "initial interest confusion" is primarily (if not exclusively) a legal construct at this point; it lacks an established corpus of social science research confirming its existence and defining its characteristics (such as how often users are "frustrated" and give up further searching as a result of finding the wrong site, or what counts as confusion). Internet research is a fairly new and dynamic area, so it is possible that relevant research exists somewhere and has escaped my notice, either because it is proprietary or because it is in an obscure journal. But I can say that there are no widely known, widely accepted empirical studies on initial interest confusion on the Internet."
In short, it means that users are able to distinguish between a website that has a URL they seek but does not contain the information they want and a website that has a URL they weren't looking for but does have the information they seek and prefer the latter.
2. As a memorable identifier
This is the function that I have seen quoted most in this thread, so let's see if it's true.
Astonishingly, Mr. Mueller contends that domain names do not function as memorable identifers (like brand names do). Again, Mr. Mueller puts forth his argument so well, I'll quote it verbatim:
"Consider the term "digital convergence." I have registered the names
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* Mr. Mueller is an Associate Professor at the Syracuse University School of Information Studies, where he directs the Graduate Program in Telecommunications and Network Management. In addition to being a renowned academician, Mr. Mueller is one of the leading authorities on conflicts involving trademarks and Internet domain names. At the annual meeting of the International Trademark Association, Mr. Muller presented a report about a study that he had conducted involving a database of 3,850 UDRP (Uniform Domain-Name Dispute-Resolution Policy) cases, possibly the most comprehensive analysis of domain name trademark conflicts ever conducted. (You can read more about the study at the report ) His Curriculum Vitae is online at his CV.
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So, my contention is that we needlessly worry about cybersquatters taking our domain names. Let's say I write a book called "Daku Bandu Singh & Co.", which becomes an international bestseller. I try to register variations of the title and find that a cybersquatter has pre-empted all the variations. With a bit of ingenuity and my unique knowledge of the book I can come up with something like www.bandusadventures.com or even iwrotebandu.com. That can satisfy the unique identifier criterion, even if one were to disregard Mr. Mueller's deposition above.
Then there's the issue of my personal website. Let's say www.deepakmorris.com has been taken. So has .org, .info, .co.in, etc. Every possible TLD (top level domain) of deepakmorris has gone to a cybersquatter. No matter. I take something like theatremanofpune.com. Or thevoiceatpune.com (depending on which of my services I'm flogging).
Cybersquatters can no longer buy my domain name and point it at a pornographic or gambling site (a tactic they once used to blackmail people into "freeing" their names from that association) because laws have been passed specifically banning this. So if they buy my domain name and do nothing but show a blank page, how do I lose by simply ignoring their pre-emption?
By buying up domain names one plays into the cybersquatters' game.
It's time to simply ignore cybersquatters because their game ain't valid no more. It isn't an issue of cost. It's an issue of needlessly worrying about something - and frightening those not in the know about that something, however well-meaning the warning may be.
Deepak
