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In Trademarks on the Infobahn: A First Look at the Emerging Law of Cybermarks, Professor Dan L. Burk explores the possible legal treatment of internet domain names as trademarks. The internet is going commercial, and with commerce comes litigation. One emerging problem concerns the treatment of "Cybermarks," or internet domain names used as trademarks. Professor Burk believes that the law must afford some protection for recognizable product or service names in conducting business on the internet. However, Cybermarks may require some special considerations over traditional trademark law. Unlike trademarks in the real world, domain names on the internet serve simultaneously as both a name to facilitate recognition, and an address to facilitate location. While there is no exact real-world counterpart to a Cybermark, in his article, Professor Burk asserts that a recognized domain name should be protectable through extension of existing bodies of trademark law.

Professor Burk begins with an introduction to internet domain names. The internet comes as a product of the Cold War. It started as a Department of Defense sponsored research program given to the National Science Foundation. From a beginning solely for governmental and scientific collaborative projects, the internet diversified. The government funding and monitoring was slowly withdrawn; private corporations took over these functions. The internet grew, from a central backbone of a few inter-linked military and educational institutions, to a diverse hodgepodge of innumerable entities. These entities are differentiated and found in cyberspace by a domain naming system of Internet Protocol (IP) addresses.

The professor explains that each machine linked to the internet is assigned an IP address by the Internet Assigned Numbers Authority (IANA), a private entity tied to other international standards committees such as ANSI. The IP address is overlaid with a system of domain names to facilitate ease of use. There is no logical relation between the domain name and the IP address; the names are arbitrarily attached to the address by the Domain Name Service (DNS) which operates invisibly to the user. The internet addresses are assigned and the domain names are registered on a first-come, first-served basis by InterNIC Registration Service. The sole function of the domain name is to serve as a mnemonic aid for the recollection of internet resource locations. A user types in the domain name, a DNS server matches the domain name to the IP address, and the connection is established. As the sole means of making the connection between user and provider, a memorable domain name serves an important commercial function.

Professor Burk then draws attention to several recent disputes over domain names. The disputes are diverse, and their resolutions are equally varied. However, none have reached judgment in a court of law to begin a body of case law on the matter. The professor asserts, though, that the questions raised concerning possession and use of domain names are not unique, and he argues that there are several real-world trademark analogies that might be applicable to Cybermarks. The professor points out that the recent disputes all center around the use of a distinguishing business name; be it inadvertent, sanctioned, competitive, or satirical uses, these types of disagreements are not limited to the internet. Trademark law under the federal trademark statute or the Lanham Act have been in place for some time to protect the public from fraud and confusion, and to protect the good will and name recognition of businesses.

Federal trademark protection, Professor Burk goes on to say, is a function of the strength of the mark. The strength of the mark is strongest for fanciful, invented words that bear no relation to the goods or service to which it is associated. On the other extreme, no protection is afforded for those generic terms which simply name the goods or services. He points out, however, that if a "secondary meaning," or association between the name and the particular source of the product or service, can be shown, then some level of protection may afforded even more generic terms. Professor Burk believes that this same standard trademark analysis is applicable to Cybermarks.

Professor Burk asserts that there are real-world analogies to trademarks which act both as a name and an address, simultaneously identifying and locating a product or service. He points to geographic names, radio call letters, and telephone numbers. The professor uses geographic names merely to draw attention to how such a designator may be used to confuse consumers, as apparently the issue has never been litigated. He then performs a survey of the case law regarding radio call letters, but finds that this body of law would be problematic to extend. First, the call letters in their function as a name, are not coupled with the location of the station on a radio dial. Second, listening to radio has been characterized by some courts as a "background" activity, as opposed to one of active participation, reducing the consumers level of care. Finally, in this current period of rapid expansion of internet use, the definition of the internet consumer is in flux, making it difficult for matters of proof on consumer sophistication and recognition of the Cybermark.

Professor Burk finds the law regarding telephone number mnemonics the most promising for extension to Cybermarks. He points out that telephone numbers with corresponding alphanumeric designators also function both as a name and address just as a domain name does. They are also assigned by the FCC on a first-come, first-served basis. Though there are several distinguishing factors, these factors all suggest the possibility of stronger protection for domain names than telephone mnemonics. Telephone mnemonics have multiple letter combinations for a single phone number, the length of the non-generic portion is fixed, and there is concern about the limited number of terms being monopolized by granting a trademark. None of these concerns are present with Cybermarks. A domain name is completely unrelated to the underlying IP address, the name itself has no definite length restriction, there is no mandatory naming convention, and there are many more characters available to be used in naming. Professor Burk points out that, even in the more restricted arena of telephone mnemonics, courts have afforded some protection to phone mnemonics.

Professor Burk then concludes that the existing law regarding these real-world analogies to Cybermarks suggest that domain names are protectable, and should be susceptible to the accepted infringement analysis applied to other types of trademarks. He feels, however, that because the internet is a new medium, the law with regards to Cybermarks will develop its own eccentricities. The IP address as a trademark, and the internet as a medium have several unique characteristics which must be addressed by the developing law. The professor points out that Cybermarks, unlike telephone mnemonics, are completely separable from the underlying IP address having an arbitrary link, and Cybermarks are readily portable to allow uniform location of a moving internet resource site upon a fixed name. The internet itself is unique, being both a medium and a market. This makes protection of certain trademarks, such as those of television, music, and other multimedia market providers, more readily portable to this new medium, while leaving others to have to re-establish their consumer recognition in the new medium. Professor Burk feels that it is important that the law provides trademark protection on the internet to encourage businesses to venture out into cyberspace, and he believes that the law should be able to do so. The protection can be afforded, he argues, in accordance with an extension of the existing trademark law, most closely demonstrated by telephone mnemonics.