Jay: > Doing the math, if there were 10 permutations, > in 100 sub-domains, in 250 TLDs, then these large > trademark owners would have to register 250,000 > domain names to protect their mark!!! It is true that the TM people see things this way. It is also true that in a world of expanding TLDs, this is not a feasible option. Perhaps without realizing it, you have performed a reductio ad absurdem of one of the principal tenets of the trademark lobby. The real issue is: why do they think they have to do this to "protect their mark"? It is clear from your analysis that "protecting their mark" does not mean "preventing confusing and deceptive uses by infringers." It means, instead, "pre-empting the *possibility*, with 100% certainty, that anyone else can get their hands on a character string that might be misused." The problem with this expansive approach becomes obvious if we apply it to other media. It is *possible* that I will run down to my local printer and prepare artwork that looks similar to Pizza Hut's. If I have the capability to do so, there is a *threat* that I could use this printed material to infringe the trademark and start selling illicit pizzas. (NB as a Chicago deep-dish pizza chauvinist, I would never even think of such a thing. It's just a hypothetical.) But somehow, the presence of this threat has never been used to suggest that trademark holders ought to reinstitute the press licensing scheme of 17th century England and become empowered to look over the shoulder of printers AS THEY TAKE ORDERS to print. But this is exactly what the TM owners want. The standard reply to this is that the Internet conveys immediate and global visibility to the infringer, and that the costs of getting that visibility are very low compared to, for example, buying TV time or distributing thousands of leaflets. But it is precisely that immediate and global visibility that makes the problem perfectly amenable to the normal procedures of trademark policing and enforcement. Whois and string searches can be run, web sites can be monitored much more easily than localized media. Further, economically, a false pizza-selling web site is of little economic consequence unless it markets its services--and its domain name--to large numbers of people. The idea that simply HAVING a domain name suddenly makes everyone in the world aware of it and willing to spend money on it is an assumption so false that we need not waste any time on it. So what, really, is the threat to the TM holder that is above and beyond the threat posed by other media? Why do we need special and expansive powers to deal with it? Why is it any of ICANN's business at all? --MM
