Wired Law  
WiredLaw - Law Offices of Michael Leventhal
Home
Profile
Articles
Legal Links
ESP
Contact Us
Email Us
 

WHO CAN STAKE A CLAIM IN CYBERSPACE?

by Michael Leventhal

In Romeo and Juliet, Shakespeare asked "What's in a name?" More and more the 20th Century answer to that question is money. Today in cyberspace, the name game is leading to some big bucks battles.

It is by now obvious to those in big business that the Internet will be the next great business opportunity -- perhaps even the beginning of a new economic order. It is also clear that the best way to truly establish a presence on the net is to stake out your own territory by creating your own domain.

Or is it obvious?

Recent research indicates that a significant portion of major world-wide corporations have not yet established Net sites, leaving pirates, competitors or even average cybercitizens to invade the property and take it for their own. In fact, in an informal survey conducted last August, the Hertz Corp., the Nasdaq stock market, Viacom Inc., Coca-Cola Co. and others admitted they were unaware that their names had been registered for Internet use by others.

To raise your flag on new territory in cyberspace, put your name (or the name you choose) on the "land." But whose land is it? Is the first person there the one with the right to claim it? Ask Washington Post Co.'s Kaplan Educational Centers, who recently won what appears to be the nation's first judicially determined decision on domain sites against arch-rival Princeton Review. (Both companies market SAT prep courses.) In order to grab a piece of Kaplan's market share, Princeton had registered the domain name Kaplan.com. Kaplan argued that the move violated laws of trademark infringement and constituted unfair competition, and got an arbitration panel to agree, deciding that Princeton Review must relinquish all rights to the "Kaplan.com" name, and transfer it to Kaplan.

To register a domain name, you must file an application with the Internet Network Information Center (InterNIC). InterNIC is a registration service that currently acts as a clearinghouse and little else. It does not have the resources to monitor registrations, but will cancel an illegitimate or malicious application if it sees one (see Sprint's registration of mci.com, revoked shortly thereafter). About two to six weeks after filing, if your name clears, you should receive notice that your application has been accepted and your name added to the thousands of internet land-owners.

The question becomes, who, if anyone, has a pre-ordained right to set up his or her cyber-residence at a particular address? What type of right is it -- trademark? Property? Joshua Quittner, whose only known connection to McDonalds is as a customer, writing in Wired Magazine's October, 1994 issue, took the bull by the horns when he registered McDonalds.com as his own address. For a while, he could be reached at Ronald@McDonalds.com. Kaplan and Sprint are easy, but Quittner points to a potential sliding scale in the freedom to register. Who can have McDonalds.com if the Golden Arches have failed to get there first -- some guy named McDonald, some guy who likes the children's song, some guy who loves Big Macs? These issues have yet to be sorted out by the Courts, but rest assured they will give lawyers more opportunities to earn their fees in the future.

And Quittner? After McDonald's unsuccessfully attempted to obtain the domain name in court, Quittner named his price and McDonalds agreed. The hamburger giant contributed $3,500 to a public school in Brooklyn's Bedford Stuyvesant area for the purpose of setting up a high-speed internet connection at the school. The connection will be fast enough to run full-motion video. "One of the problems that everyone has identified is the information haves and the information have-nots," said Quittner. "Both McDonald's and P.S. 302 were have-nots. Now they are information-haves." In this case, everybody wins. As for future disputes, time will tell.

Copyright 1999

Home | Profile | Articles | Links | Contact Us | Email

© Copyright 2003 Michael Leventhal. All Rights Reserved.