The current stewards of the Internet's 1.6 million-odd domain names have revised their domain name dispute policy to place name owners more at the mercy of those who hold matching registered trademarks, critics charge. Further, legal experts say, the new Networks Solutions Inc. policy grants NSI the right to transfer any domain name to any other party.
First posted for review on 25 January, Network Solutions' latest Domain Name Dispute Policy, which was mailed to domain owners Wednesday, is slated to become effective on 25 February. But many trademark lawyers, including domain dispute expert Carl Oppedahl, believe the company's policy is already fatally flawed and is only getting worse.
"It's positively worse," said Oppedahl, a founding partner of Intellectual Property Law specialists Oppedahl & Larson. "They now have a new provision where, in their sole discretion, they can take any domain name and give it to anybody."
The company denies that this is in fact what the new policy states.
"That's not true, it never has been, is not now, and will not be in new versions of the policy," said Dave Graves, Network Solutions' director of business affairs.
"Because there's nothing at all in law that says having a trademark and the rights to that trademark also provide an automatic right to a domain name," said Graves. "There's nothing that says that."
But critics point to one newly revised section, which reads in part, "Network Solutions shall 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."
Graves offered a different interpretation of the passage.
"It basically says that 'We have the right to do whatever the parties agree to, or conversely if we receive a court order where the judge orders this transfer, it reinforces the position that we have had for a long time - in that we will comply with court orders,'" Graves said.
But Oppedahl countered that the vagueness of the language points to a wider failure of the policy: that it has triggered frequent disputes - some winding up in court - over name ownership.
Graves said that the numbers of domain-name challenges should be seen in context.
"Our dispute policy has been invoked about 1,700 times in the two years that it has been in existence," he said. "Compared to a database of over 1.6 million domain names, that represents about one-tenth of 1 percent."
"In a very simple, shortsighted way, you might think that any policy that is favorable to trademark owners might be favorable to international trademark lawyers - but in reality, it only favors some trademark owners, and only in an unfair way that injects unpredictability into legitimate businesses," said Oppedahl. "All the trademark lawyers in the world except the ones who work for NSI seem to say that the policy's a failure."
Indeed, even the International Trademark Association believes that the Network Solutions dispute policy is lacking.
"This seems to us to be simply clarifying some fairly minor points - clarifying some of the language that previously might have been a little ambiguous or vague - but it does not significantly modify the basic structure of the dispute policy and does not eliminate the concerns that we have had about the inequities that are inherent in the dispute policy," said Sally M. Abel, chair of the trademark association's Internet subcommittee.
"While we applaud NSI's effort to address the issue, we have the same concerns we did before," Abel said.
Furthermore, Abel noted that the revised policy has also taken away the ability of a trademark owner to rely on its date of first use of a trademark in challenging a domain - so that now, the only relevant date is the effective date of the trademark owner's registration, which could be years later.
"In terms of the substantive changes," Abel said, "it is in large part, 'NSI giveth, and NSI taketh away.'"
In the 1996 case Panavision International, LP v. Toeppen, US District Court Judge Dean Pregerson wrote that "NSI's standard domain name registration agreement contains a domain name dispute policy, but the policy has not proven effective in resolving domain name conflicts." Pregerson added that it was "clear beyond question that the policy's sole purpose is to protect NSI."
Network Solutions' policy revision was released five days before the Clinton administration's "green paper" on domain and Internet governance, which proposes that NSI's role devolve into a competitor among many similar companies.
"The problem here is stability on the Internet," Oppedahl said. "The Internet is harmed whenever URLs change or whenever domain names change. It imposes an enormous social cost, because people have to deal with lost emails and broken links on Web sites - especially in a case where the domain name owner wasn't doing anything wrong," Oppedahl said.
"It's irresponsible for NSI to be cutting off and transferring domain names," Oppedahl.
