Comments of Carl Oppedahl in Response to the WIPO Interim Report dated December 23, 1998 (WIPO RFC-3)

March 11, 1999

These comments are being submitted to WIPO to meet the due date of March 12, 1999. These comments are available on the undersigned's web site at http://www.patents.com/nsi/rfc3comments.htm and it is expected they will also be available on the web site of WIPO.

• Information about the undersigned
• Executive Summary
• Other recommended reading
• Detailed discussion
• No long-term mechanism is needed for a one-time problem
• The creation of new top-level domains
• Scope of remedies
• The WIPO proposal in fact would create new substantive rights
• There should be a statute of repose
• The WIPO recommendations would have a tribunal evaluating non-domain-name conduct, which is fraught with evidentiary risks
• The WIPO recommendations would allow strange challenges to be brought
• Conclusion: trademarks are extremely important, and should be protected as they always have been protected
• Footnotes

Information about the undersigned. I am Carl Oppedahl, a partner in the intellectual property law firm of Oppedahl & Larson LLP. I received a bachelor's degree in mathematics and in physics in 1978 from Grinnell College in Grinnell, Iowa, and received my law degree from Harvard Law School in 1981. I do not represent and am not being paid to represent any party in this RFC process. I have counseled many dozens of domain name owners in domain name disputes, and have seen first-hand the profound inequities that often result from the domain name dispute policy of Network Solutions, Inc. (NSI). I have written articles on these issues, including Remedies in Domain Name Lawsuits: How is a Domain Name Like a Cow?, 15 John Marshall Journal of Computer & Information Law 437 (1997) and Analysis and Suggestions Regarding NSI Domain Name Trademark Dispute Policy, 7 Fordham Intellectual Property, Media & Entertainment Law Journal 73 (1996). My chief reason for submitting these comments is to try to reduce the likelihood that the WIPO RFC proceedings would lead to inequities similar to those that have stemmed from the NSI policy.

Executive Summary. The WIPO recommendations, no matter how well intentioned, would have the practical result of adding to the arsenal of offensive weapons available to those who covet the domain names of others but have no legal claim to them, and who wish to substitute size and money for the absence of any legal claim, in an effort to coerce or panic innocent domain name owners into handing over the coveted property. Although the WIPO recommendations claim that they do not and would not amount to the creation of new and expanded trademark rights, the reality is that they would do exactly that. This paper suggests that the WIPO recommendations be set aside and that the original policy outlined in RFC 1591 in their place.

Other recommended reading. I urge the reader to study:

• the comments of Prof. A. Michael Froomkin, who is a Member of the WIPO Panel of Experts for the Internet Domain Name Process
• Prof. Litman's comments at http://wipo2.wipo.int/dns_attachments/rfc3/attach920920721.doc
• Ellen Rony's comments at http://www.domainhandbook.com/rfc3.html
• Prof. Mueller's comments at http://wipo2.wipo.int/dns_attachments/rfc3/attach920697379.doc

Detailed discussion. If one company has trademark rights and feels that some other company is violating them, in general the only way the trademark holder may enforce them is by filing suit in a court of competent jurisdiction. This is so whether the dispute concerns a brand name of a new product, the user-perceptible text of a web site, the meta-tags of a web site, or the wording of a print advertisement.

The late Jon Postel, one of the highly respected founding fathers of the Internet, drafted the original domain name policy, called RFC 1591 (" Domain Name System Structure and Delegation"), and that policy is followed to this day by a substantial number of the domain name registrars around the world. It is the policy that was followed by the first government contractor who administered com, net, and org domains, and was followed by NSI when it took over the government contract. Mr. Postel's policy stated:

In case of a dispute between domain name registrants as to the rights to a particular name, the registration authority shall have no role or responsibility other than to provide the contact information to both parties.

The registration of a domain name does not have any Trademark status. It is up to the requestor to be sure he is not violating anyone else's Trademark. (RFC 1591, Section 4.1.)

But on July 28, 1995, NSI turned away from Jon Postel's wise counsel and took it upon itself to start deciding whether to take a domain name away from its owner based on the complaint of a trademark challenger. NSI's then-new policy had two unfortunate effects:

• it raised expectations among trademark plaintiffs and their lawyers that domain names are "special", and that instead of having to undergo the fuss and expense of going to court, the trademark plaintiffs were "entitled" to obtain injunctive remedies from the domain name registrar, NSI.
• it created the hitherto unheard-of notion that one could discern whether trademark infringement was taking place by means of nothing more than a mechanical test to see whether the trademark was text-identical to the domain name.

In the years that have passed since the NSI July 28, 1995 policy, NSI has many hundreds of times gotten the "wrong answer", cutting off a domain name under facts that would not have led a regular court to cut off the domain name. In most of these hundreds of cases, the domain name owner has lacked the financial resources to bring a court action to ask a court to undo the effects of NSI's "wrong answer". In many cases, the domain name owner, completely innocent of any conduct that would have led to a finding of liability in a regular court, has had his or her business destroyed due to loss of the domain name. The most highly visible "wrong answer" was perhaps the case of juno.com. The juno.com domain name was owned by Juno Online, a provider of email service to half a million persons at the time that Juno Electric, a maker of light fixtures, asked NSI to cut off the domain name. NSI got the "wrong answer", concluding that the right thing to do was to cut off the domain name (and thus to cut off half a million people from their email). Juno Online, fortunately, had enough money to seek a court order blocking NSI's plans, and at the last minute NSI relented and agreed to cancel its cutoff plans.

NSI has also gotten the "wrong answer" in the Roadrunner case, in which a maker of plush toys asked NSI to cut off the roadrunner.com domain name owned by an internet service provider in New Mexico (where the state bird is the Roadrunner, and where many businesses are so named). It got the "wrong answer" in the case of perfection.com, owned by a printing company, when asked by a maker of children's board games to cut off the domain name. It got the "wrong answer" in the case of post.com, owned by a video post-production facility when asked by a real estate management company to cut off the domain name. It got the "wrong answer" in the case of clue.com, owned by a computer consultant, when asked by a maker of children's board games to cut off the domain name. It got the "wrong answer" in the case of prince.com, owned by a computer training company, when asked by a maker of sporting goods to cut off the domain name. The author is aware of many dozens of other instances in which NSI has gotten the "wrong answer," some of which must be held confidential due to attorney-client privilege.

NSI's policy ignores many factors which a normal court would not. For example, it takes no account of the length of time that the domain name owner has had the domain name. If a domain name owner has openly used a domain name for many years, a normal court would ask the common-sense question why the challenger took so long to speak up and take action. NSI does not. If a domain name owner is not engaged in any commercial activity, an ordinary court (in the US, at least) would dismiss any Lanham Act trademark infringement or dilution claims, since the Act applies only in cases of commercial activity. NSI will cut off a domain name even in the absence of any commercial activity. A normal court in the US would consider common-law trademark rights accumulated by the domain name owner over many years; NSI ignores any such accumulated rights.

In a few recent court cases,⁽¹⁾ courts have explicitly reached the opposite outcome as the "wrong answer" reached by NSI under its policy. The practical result is a reversal by the court of the decision previously made by NSI.

NSI has sought to portray its position as being "in the middle" between domain name owners and trademark advocates, but the reality is otherwise. Nearly everyone who has been exposed to the NSI policy, from the Domain Name Rights Coalition to the International Trademark Association, has called for NSI to scrap its policy and to leave decisions about domain names to the courts. INTA says:

... this paper proposes that the current NSI Dispute Policy be recognized as a failure and eliminated, that domain name disputes be left to the courts, [and] that [NSI] not participate in the resolution of domain name disputes ...

Putting an active domain name on hold is effectively a form of injunctive relief, granted by [NSI] after the registrant has invested in the challenged domain name. Thus, in some circumstances, the dispute policy will allow certain trademark owners to trump the legitimate rights of other trademark owners and obtain the equivalent of injunctive relief, without meeting the stringent standards for such relief required by law. This is unfair.

The [NSI domain name trademark] policy can result in injustice and it can get [NSI] dragged into court (often to prevent just such an injustice) because [NSI] is playing a judicial role that it is neither authorized nor competent to play.

(INTA Internet Subcommittee Proposed Domain Name Registry Policy, http://www.inta.org/dnprop.htm) Unfortunately, despite universal criticism⁽²⁾, NSI has refused to admit that there is anything wrong with its policy. NSI has clung to its policy for almost four years, cutting off one innocent domain name owner after another. And each NSI "wrong answer" not only harms the domain name owner. It also harms the many web sites (sometimes numbering in the thousands) that have links to the now-dead web site. It harms the myriad visitors to those web sites that now have broken links. It harms the many Internet users who have made web browser bookmarks to the now-dead web site. It harms the many email correspondents whose email addresses don't work any more due to NSI having cut off the domain name. And it harms those who want to send email to those correspondents. If the wrongful NSI cutoff puts a web-dependent employer out of business, then the ex-employees are harmed.

Under NSI's policy, for most domain name owners who are told that NSI plans to cut off the domain name, the only way to avert the cutoff is to file a "declaratory judgment action" in court. For the very limited number of domain name owners who have enough money to fund such a litigation, this does avert the loss. But the so-called "DJ action" imposes its own cost on the taxpayers who pay for the court staff, on the jurors who are called into service, and on the other litigants whose cases are delayed, all to handle a lawsuit that should never have been needed to be filed in the first place, but for NSI's "wrong answer" that only a court can set right.

The NSI policy has many other flaws⁽³⁾ that will not be discussed further here.

What is unfortunate is that the WIPO recommendations ignore both the wise counsel of Jon Postel, and the lessons of history from NSI's policy. WIPO proposes to follow NSI's example, setting itself up as an authority to determine when a domain name should be cut off and given to someone else. In doing so, it perpetuates one of the unfortunate expectations first created by NSI:

• it will continue to raise expectations among trademark plaintiffs and their lawyers that domain names are "special", and that instead of having to undergo the fuss and expense of going to court, the trademark plaintiffs are somehow "entitled" to obtain injunctive remedies from WIPO.

The fact is, domain names are not and should not be "special". A trademark plaintiff who finds fault with a domain name should go to the same court that would be competent to hear, say, a dispute regarding the text of a web site, or the meta-tags of a web site. There is simply no reason to set up a complex extra-judicial system for the narrow issue of domain names when the existing courts are more than competent to handle domain names just as they handle all other Internet-related trademark disputes.

No long-term mechanism is needed for a one-time problem. Anyone who sets a goal of devising policy, on the Internet or elsewhere, must necessarily figure out whether the problem addressed by the policy is a one-time problem or an ongoing problem. If it is an ongoing problem, the policy approach needs to take into account the ongoing nature of the problem. If, on the other hand, the problem is or is likely to be limited in duration the policy approach should be limited in scope, and indeed for some time-limited problems the best policy approach is to change nothing.

The majority of domain name disputes to date can be directly traced to a simple fact, namely that entities have differed in recent years according to when they figured out that the Internet was important. Adam Curry figured out that mtv.com might be valuable some months before MTV figured it out. Josh Quittner figured out that mcdonalds.com might be valuable some months before the McDonalds restaurant chain figured it out. In the area of domain names that are dictionary words used by many companies, such as clue.com, perfection.com, earth.com or post.com, it is inevitable that one of the users would have discovered the importance of the Internet (and of the eponymous domain name) earlier than another. Stating this differently, it is inconceivable that all the users of a particular dictionary word would discover the importance of the Internet on the same day, and it is virtually guaranteed that the user who was slower will regret having been slower. The slower user who happens to have a lot of money set aside for litigation, or whose fact pattern happens to match the requirements of the NSI policy, may well set a goal of trying to wrest away the domain name which it covets.

The disparity as to when various entities discovered the Internet can be as much as a decade. IBM, for example, had the foresight to register its ibm.com domain name in 1986. Harvard University registered its harvard.edu domain name in 1985. In contrast, the company that makes Earth brand shoes apparently only discovered the Internet in 1998, found that someone else had registered earth.com in 1994, and is now said to be trying to use the NSI policy and the court system to try to wrest the domain name away from its owner.

What, then, does common sense suggest about the near-term trend and long-term trend as to the incidence of domain name disputes? Common sense suggests that many of the domain name disputes have arisen because would-be contenders for a particular domain name did not discover the importance of the Internet simultaneously. But with each passing day, the fraction of business entities that are ignorant of the importance of the Internet diminishes, and is asymptotically approaching zero. As between any two would-be contenders to a dispute, the dispute can newly present itself only if one of the contenders had not already discovered the Internet. The universe of such Internet-ignorant entities is, however, shrinking with time, thus the opportunities for disputes of this type also diminish with time.

The first domain name disputes, such as the mtv.com and mcdonalds.com cases, arose in about 1994. If NSI is to be believed, the number of disputes reached a peak in about 1997 and is now on the decline.⁽⁴⁾

Such a decline is in fact precisely what one would expect for the reasons just stated.

Given this expected and, according to NSI, observed decline in the incidence of domain name disputes, it seems a poor use of resources to go to great lengths, expense, and social cost to devise a complex mechanism such as that proposed by WIPO to deal with such disputes. Instead, as the number continues to decline, the disputes can simply be decided as Jon Postel directed, namely by the courts.

The creation of new top-level domains. It has been proposed by some that new top-level domains (e.g. .biz, .per) be created. The argument takes as its working premise that the .com domain is "full" or "crowded" and that "pressure on the .com" domain could be relieved by the addition of new top-level domains.

This argument fails, for the simple reason that there are already about two hundred top-level domains. (It is all too easy for US-based commenters to forget that there are top-level domains that end in two letters, associated with particular countries.) The availability of these two hundred alternatives to .com has not relieved "pressure" on the .com domain. Adding a few more to the existing two hundred is quite unlikely to help at all. Big businesses are obsessed with the .com domain, and bandaids such as the addition of a handful of new top-level domains to the existing two hundred or so will not make this obsession disappear.

An example from the world of North American toll-free numbers may be instructive. For several decades the only toll-free numbers in the North American Numbering Plan (NANP) began with "800". Eventually the address space approached exhaustion, and it was decided to add the "888" prefix. This was to double the number of available toll-free numbers. Stakeholders who valued their "800" lobbied successfully for a rule that gave each owner of an "800" number a right of first refusal to the corresponding "888" number. For example, the owner of 800-FLOWERS was automatically entitled to 888-FLOWERS. On the day that 888 numbers were allocated, a substantial fraction of them were instantly spoken for. The addition of "888" came nowhere near to doubling the address space.

The addition of some new top-level domains is likewise unlikely to meaningfully increase the address space. Instead, owners of valuable .com domains are certain to press for entitlements to corresponding domain names in the new domains. An unseemly "Oklahoma land rush" is almost certain to occur as hopeful parties try to obtain desirable domain names, each of which is perceived as a lottery ticket for later riches. For the ordinary Internet user who sees a web address on television or hears it on the radio, and who wishes to remember it so that later it can be typed in at the screen of a web browser, the addition of these new top-level domains will simply add to confusion and frustration.

It takes only a slight cynicism to view the WIPO recommendations as a back-door attempt to give previously slow-to-appreciate-the-Internet trademark holders an advantage in the land rush, as if to make up for their slowness in past years in which .com domains came to be perceived as important.

What is needed, of course, is for trademark holders, and for the entire Internet community, to overcome the tendency to guess at web addresses by typing the name of a company (or its initials) into the "location" box of a web browser. Instead, much of the energy now directed toward domain name disputes, toward the WIPO recommendations, and toward the creation of new top-level domains, should instead be expended in educational efforts to assist the Internet community in appreciating that search engines and online directories are the way to find web sites.

Scope of remedies. Both the present NSI policy⁽⁵⁾ and the WIPO recommendations⁽⁶⁾ contemplate that one of the available remedies is a forced transfer of ownership of a domain name. WIPO proposes to grant such transfers after proceedings in which only two parties are heard -- the domain name owner on the one hand, and the trademark holder challenger on the other. Yet where a domain name is a common dictionary word it is commonplace, and indeed exactly what would be expected, that dozens or hundreds of companies have the same name. In such a situation it is unreasonable for WIPO to reward the race to WIPO's courthouse by limiting the universe of possible recipients of the domain name to the party who won the race. Instead, common sense and fairness dictate that a forced transfer of a domain name should only take place after reasonable notice is given to all of the would-be claimants to the domain name. If the WIPO tribunal, rather than NSI, had sat in judgment as to whether the Prince Sporting Goods company was entitled to take away the prince.com domain name from its owner the computer training company, it would be manifestly unjust to transfer the domain name to the sporting goods company without making due inquiry into whether some third party named "Prince" was in fact even more deserving of WIPO's largess.⁽⁷⁾

On a practical level, it is probably prohibitively expensive to search the world for all possible claimants to a particular domain name. While online commercial databases permit fairly comprehensive searches for companies in some countries with a particular name or trademark, there are many countries in which such searches can only be done manually by consulting paper records. Given the difficulty in reaching a position of high confidence that all such entities could be identified, WIPO's proposal that forced transfers of domain names be among the available remedies should be scrapped, just as NSI should eliminate forced transfers from its list of available remedies.

The WIPO proposal in fact would create new substantive rights. The WIPO proposal would give standing for an entity to bring a WIPO challenge based on a claim that someone else's ownership of a domain name has the result of "damag[ing] the interests" of the challenger.⁽⁸⁾ What interests? The WIPO proposal doesn't say. Presumably any company that covets a domain name can say, more or less truthfully, that it would make more money if it owned the domain name than if someone else owned it. Thus the circumstance that it does not own the domain name would "damage its interests." It might well be the case that an ordinary court, interpreting ordinary causes of action, would conclude that the domain name owner is not doing anything wrong. The WIPO tribunal, on the other hand, would apparently be willing to transfer a domain name for no better reason than that the challenger wants it (that is, expects it could make more money if it owned the domain name). In everyday terms, it would be as if the covetous party need do no more than establish that the covetousness is financially motivated to show entitlement to possess the domain name.

In the prevalent case where a domain name is a common dictionary word used by many companies, this WIPO-created substantive right could lead to absurdities. United Airlines could quite credibly prove that its "interests" are damaged by the fact that someone else owned united.com, in the sense that it would make more money if it owned the domain name. The WIPO tribunal would then order the transfer of the domain name to United Airlines. United Van Lines could then equally credibly prove that its "interests", too, are damaged by its not owning the domain name. To be consistent, the WIPO tribunal would then have to order a transfer of the domain name to United Van Lines.

Normal courts don't have this sort of problem, because it is commonplace for more than one company to have a particular name, and that quite often the reality is that none of such companies is entitled to get a court order blocking the actions of another of such companies, or taking something away from another of such companies.

The question naturally arises which law would be applied by the tribunal. RFC-3 recommends:

that the merits of a dispute be decided by the decision-maker in accordance with the laws that, in the light of all the circumstances of the case, are applicable and by reference to a set of guiding principles that endeavor to identify the dominant considerations that national courts cases have taken into account.

(Para. 198.) The difficulty is that no one knows what these "dominant considerations" might be. Comparative advertising, for example, is legal in the US and illegal in Germany; which position will be accepted into the "guiding principles" of the tribunal? On a practical level, the likely result would be "entitlement creep", as substantive rights that are particularly strong in any one jurisduction would find their way into the "guiding principles" and thus would constrain the behavior of domain name owners in all jurisdictions. The lawyer asked by a would-be domain name owner for an opinion of counsel that the domain name is free of risk of loss in a WIPO tribunal would have to check numerous, and perhaps all, "national court cases" in all countries. This puts an almost insurmountable burden on any would-be domain name owner. The "entitlement creep" would lead to an unhappy result -- if the conduct is illegal anywhere, it becomes illegal everywhere.

There should be a statute of repose. If, despite the objections raised to the WIPO recommendations, the WIPO tribunals commence operation, then at the very least there should be a statute of repose. A statute of repose establishes some time period after which WIPO will not disturb the ownership of a domain name, and after which a complainant would have to revert instead to the ordinary court system to try to get a remedy. In the juno.com case, the Juno Online company had owned the domain name for well over a year, and many of its half a million email customers had been using their email addresses (which depended upon the juno.com domain name) for over a year. In such a situation, NSI nonetheless determined that it would side with the challenger and cut off the domain name. The WIPO tribunal should not do so. Settled expections such as the stability of web links, web bookmarks, and email addresses should be protected. Yet the WIPO recommendations reject a statute of repose.⁽⁹⁾

The WIPO recommendations would have a tribunal evaluating non-domain-name conduct, which is fraught with evidentiary risks. Despite the many flaws in NSI's policy, it at least limits its potential harm to a domain name owner to cases in which the challenger has satisfied objective criteria (i.e. an exact text match between domain name and trademark, and the existence of a registration for the challenging trademark, and the absence of a registration for a trademark for the domain name). The domain name owner is not at risk, under NSI's policy, for challenges that are based on (necessarily subjective) evaluations of various extrinsic conduct by the parties. Challenges based on conduct are relegated to ordinary court, and rightly so given that ordinary courts are experienced with evaluating evidence and subjective factors.

The WIPO recommendations would establish a tribunal which evaluate non-domain-name conduct. As described in paragraph 167, the recommendations contemplate evaluating "the underlying use of a domain name" and studying "goods of a different sort to those previously offered on the web site". It is difficult to imagine cross-examining witnesses, evaluating product packaging, or interviewing allegedly confused consumers, all before a tribunal which might well be located thousands of miles from any party or witness. Yet this is precisely what is proposed, and it gives an enormous advantage to the challenger who has substantial financial resources.

The WIPO recommendations would allow strange challenges to be brought. The WIPO recommendations would give standing to a challenger in "any dispute concerning the domain name arising out of the alleged violation of an intellectual property right."⁽¹⁰⁾ Suppose the domain name is prince.com and the asserted intellectual property right is that of some country in which persons with the title of "prince" are able to block others from using that title. Or suppose the challenger's intellectual property right is a utility patent, and the claim is that the owner of the web site with a particular domain name is infringing the patent through the operation of the web site. Suppose someone has a copyright registration for a work containing the word "prince" and alleges that the prince.com domain name infringes the copyright.

Indeed for a domain name owner, the WIPO recommendations present an even more frightening prospect, namely that the domain name owner would be deemed to have consented to jurisduction by the WIPO tribunal over not merely intellectual property disputes, but in fact over "any dispute concerning the domain name."⁽¹¹⁾ This would seem to include, for example, a fight between descendants of a deceased domain name owner over who will inherit the domain name.

Conclusion: trademarks are extremely important, and should be protected as they always have been protected. I recently turned to the Internet to try to obtain a particular wine that is not easy to find in wine shops. Using a search engine, within seconds I had found a web site offering a case of the elusive wine, and at a good price. But a skeptic might ask, should I hand my credit card number to someone I have never met? Should I really authorize a charge of several hundred dollars on my credit card? What if the bottles arrive and are filled with vinegar?

I worried about none of these things. The web site was associated with Yahoo!, which I recognize. The wine was Sonoma-Cutrer, a brand that I trust. I pulled out my wallet, typed in the credit card number, and three days later I had twelve bottles of a wine that elsewhere can often be bought only one bottle at a time.

This is Internet commerce, and the only thing that made it possible is our system of trademark laws.

I feel strongly that trademarks are extremely important, and should be protected. To do otherwise would be to give up the extraordinary social benefits that can flow from Internet commerce.

But there is no cogent reason why Internet domain name disputes should be handled differently from other disputes, such as the allegation that the text of a web site infringes a trademark right, or the allegation that someone is selling counterfeit trademarked goods. Jon Postel was right: "In case of a dispute between domain name registrants as to the rights to a particular name, the registration authority [should] have no role or responsibility other than to provide the contact information to both parties." The International Trademark Association was right: "domain name disputes [should] be left to the courts." The recommendations in RFC-3 should be withdrawn.

Footnotes

1. Interstellar Starship Services, Ltd. v. Epix, Inc., 983 F.Supp. 1331, 45 USPQ2d 1304; CD Solutions Inc. v. Tooker, 15 F.Supp.2d 986, 47 USPQ2d 1755; and Data Concepts Inc. v. Digital Consulting Inc., 150 F3d 620, 47 USPQ2d 1672.

2. "This policy [NSI's Policy] has been universally criticized." Nathenson, Ira S., Showdown at the Domain Name Corral: Property Rights and Personal Jurisdiction over Squatters, Poachers and other Parasites, 58 U. Pitt. L. Rev. 911 (1997). "NSI has been widely criticized for its policy that unilaterally cuts off a domain name at the behest of a trademark holder, even in the absence of infringement or dilution, and ignoring otherwise permissible concurrent use of registered and common law trademarks. This policy also encourages poaching by trademark holders who might not otherwise have a colorable claim in court. Since domain name disputes will continue to exist regardless of NSI's biased policies, NSI should get out of the business of evaluating the merits of competing claims. At most, it should require arbitration, and at the least, it should do nothing unless and until a court directive to the contrary is received. This would discourage poaching and allow domain name holders due process via adjudication of claims in court, where all aspects of trademark law may be addressed."

3. Analysis and Suggestions Regarding NSI Domain Name Trademark Dispute Policy, 7 Fordham Intellectual Property, Media & Entertainment Law Journal 73 (1996).

4. "During the slightly more than 5 months between the end of July 1995 and the end of the year, we invoked the [NSI domain name dispute] Policy 166 times. During 1996 we invoked the Policy 745 times. During 1997 we invoked the Policy 905 times. During 1998 we invoked the Policy 838 times." Posting by NSI spokesperson Chuck Gomes to IFWP Discussion List, February 1, 1999.

5. NSI purports to "have the right in its sole discretion to revoke, suspend, transfer or otherwise modify a domain name registration upon thirty (30) calendar days prior written notice ... ." (NSI February 25, 1998 Policy, para. 7.)

6. RFC-3, para. 122.

7. See, generally, Remedies in Domain Name Lawsuits: How is a Domain Name Like a Cow?, 15 John Marshall Journal of Computer & Information Law 437 (1997).

8. RFC-3, para. 237.

9. RFC-3, para. 168.

10. RFC-3, para. 151.

11. RFC-3, para. 145.