Understanding what domain names do
I intend to testify that a proper understanding of the functions and actual uses of domain names
makes it clear that they are not source identifiers, and that the possession of a domain name
corresponding to a trademark by a party that does not hold the trademark does not by itself cause
diversion or confusion. I will also testify that it is important to distinguish between the search
and identifier functions of domain names.
Domain names serve two distinct purposes for their users.
Note: A third function, not relevant here, is to provide a unique identifier that serves the
purely technical function of a globally unique "address" that guides information packets to their
proper destination. In this case, it is the uniqueness of the particular string of text used
that is critical, rather than the meaning. Two domain names that may seem semantically identical -
such as amazon.com and amazom.com - are, from a technical point of view, as different as abc.com and
xyz.com - just as getting one digit wrong on a telephone number is a completely wrong number. In
discussing the functions of domain names in the main text above, I am concerned exclusively with
their usage by humans and not with their technical usage by machines on the Internet.
Domain names can perform search functions when they are used to locate web sites (or other
online service) for the first time. In the paradigmatic case of using domain names as search aids,
an Internet user who wants to find Henry Mishkoff's web site makes some guess about what she thinks
the address will be (e.g., <mishkoff.com>) and types that into the URL bar of her web browser.
In effect, the second-level domain name is used as a keyword (or what information scientists refer
to as a search token), with .com the default value for the top level name.
Domain names also serve a distinct, separate function related to their status as names. Domain
names are memorable identifiers. By that I mean that they perform the same function as a
telephone number, but are semantically meaningful because they can use alphanumeric characters as
well as numbers. The registrant of a domain name uses them to advertise and communicate their
Internet location, and the registrant's communication partners store them or mentally remember them
for use when they want to find the registrant's Internet location. As an example, if I see an
advertisement for "The Shops at Willowbend Mall" the ad likely has a web URL containing a domain
name on it. Once I see the URL I know that if I want to go to the Mall's website, I should use the
advertised identifier. This function is distinct from search: it is important even when users
already know that a web site exists, have already visited it before, or have already been exposed to
advertisements from the web site's owner telling them what the domain name is. The memorable name
makes it easier to remember, type, record, and retrieve the information needed to find the site.
When performing this function, the domain name need not correspond to, and often does not correspond
to, the actual name of the source or a trademark. As memorable identifiers, domain name usage puts a
high premium on shortness as well as meaning. Ceteris paribus, a short domain name is easier
to use because it is easier to remember, takes less work to type in than a long domain name and one
is less likely to make errors. Thus, many companies with long or potentially confusing corporate
names use very short domain names as their primary identifier; e.g., Merrill Lynch publicity
broadcasts the domain name <ml.com>, not the domain <merrilllynch.com>. I note with some
amusement that the plaintiff in this case does not rely extensively on the disputed
<theshopsatwillowbend.com> name, but uses the more economical <shopwillowbend.com>. That
domain name is not trademarked. In fact, at the time of this writing the domain name
corresponding to the trademarked term "The Shops at Willow Bend" does not work.
This second, more basic, naming function is why domain names really exist. As the developers of
the domain name system protocol have asserted repeatedly, the domain name system was not designed to
be a directory or search tool.
Note: See Paul Vixie's 1995 article, John Klensin's reflections on the domain name system, and Jon Postel's 1994 statement in RFC 1591.
Its usage in that capacity was a historical accident and was largely temporary in nature,
although it has had lasting effects due to its mistaken embodiment in some legal opinions.
Note: I am referring specifically to the Brookfield Communications, Inc. v. West Coast Entertainment
decision (174 F.3d 1036), which states that "web users often assume, as a rule of thumb, that the
domain name of a particular company will be the company name followed by a .com". No systematic
empirical evidence quantifying the validity of this proposition is available.
Many legal debates and discussions of domain names tend to conflate these two distinct functions
(searching and memorable identifier). That conflation is at the heart of this case. They assume that
registration of a domain name somehow gives the registrant sweeping, almost magical powers to
collect or intercept traffic from anyone who might be searching for the named entity. This
assumption is false. As we shall see in the next section, domain names are a poor search tool and
are no longer commonly used for that purpose. The overemphasis on the search function, and the
confusion of search function with the memorable identifier function, tend to trivialize or obscure
the reasons why users might want to register domain names for purposes of nominative reference or
free expression.
