Send Domain-Name Debate to Court

Cybersquatting: The practice of snapping up Internet domain names that are likely to be popular or that are similar to those of existing businesses or organizations.

For example, there’s whitehouse.com. Its name may conjure up images of 1600 Pennsylvania Ave., but it is actually a porn site. (The official White House site is whitehouse.gov.)

Or think about drhenrylee.com. It sounds like it might belong to Dr. Henry Lee, the Connecticut State Police commissioner and famous forensic pathologist who figured in the O.J. Simpson case. But it’s actually owned by some guy from Waterbury, Conn.

To some, the notion of cybersquatting smacks of dirty tricks. They believe people shouldn’t be allowed to lure traffic to a Web site under seemingly false pretenses.

Congress agrees. The House and Senate included anti-cybersquatting provisions in their latest budget bill. President Clinton signed it into law.

Unfortunately, a legal ban on cybersquatting is exactly the wrong approach to solving this complex problem. Decisions about who should own the rights to such-and-such.com are better left to the courts, which can examine conflicting claims on a case-by-case basis.

Keep in mind that courts generally give trademarks an edge over domain-name registrations. In other words, even if someone were savvy enough to register coke.com before Coca-Cola got to it, Coke could probably go to court and have that domain name taken away. That’s because Coca-Cola holds a trademark on “Coke.”

(By the way, don’t bother to try it. Coca-Cola already has registered coke.com, cocacola.com, and dietcoke.com.)

But even a trademark isn’t absolute. A federal court in Boston recently held that clue.com doesn’t necessarily belong to toy-maker Hasbro, even though the company owns a trademark on the board game of that name.

Similarly, courts have ruled that a company called Virtual Works can continue using the domain name vw.net, over the objections of car maker Volkswagen.

The matter gets trickier still with personal names. Most people don’t bother trademarking their name.

Even so, it does seem unfair to let anyone register the name of a famous person as an Internet address and then, in effect, hold it for ransom.

Two celebrities--actor Brad Pitt and singer Kenny Rogers--immediately filed suit under the new cybersquatting law, seeking to gain control of domains that bear their names.

But not so fast. What if no actual or implied attempt to impersonate the celebrity is involved?

Kennyrogers.com, for example, is registered to a wedding service Web site based in California. That site is certainly not pretending to be affiliated with the country singer. A disclaimer on the home page clearly states that it is not associated with the singer. It’s also not affiliated with Kenny Rogers, a major league baseball pitcher.

Should the singer be able to take the domain name away? Or, for that matter, should the baseball player be able to take it? And what about all the other people named Kenny Rogers in this world? Do they get a shot, or do celebrities get the advantage?

For yet another example, take the case of gwbush.com. That Web site is a satire and parody of the Bush for President campaign site. Should Bush, a public official and a public figure by any definition, be able to take control of that domain name? (Bush is filing suit over alleged copyright violations but hasn’t moved to claim the domain name itself.)

These, and other cases of domain-name conflict, deserve a careful balancing of free-speech rights, private property rights, copyright and trademark laws, and commercial interests.

And commercial interests abound, as witnessed by the recent sale of the domain name business.com for a cool $7.5 million. There’s gold in them thar domain names. Such a payoff ensures that the gold rush will continue.

What we don’t need is a congressional rush to settle these tricky questions with a broad law that constrains our freedom to register domain names that haven’t been taken by others.

The courts are now working out an equitable system for deciding who gets what. Judges should remain free to continue that process.