Mike Doughney's comments before WIPO, March 10, 1999

My comments and corrections are in bold italics. Paragraph breaks have also been added.

Excerpted from http://ecommerce.wipo.int/domains/process/eng/dc2-transcript1.html

(Mr. Francis Gurry): The next person is Todd Cohen. Is Todd Cohen present? He is not here. Then let’s move on then to Sarah Deutsch ......................... (inaudible). The next person is Michael Doughney. I am sorry if I am mispronouncing your name.

(Mr. Michael Doughney, ISP, domain Name Owner, Representing Self): Good morning. My name is actually Mike Doughney, and today I am going to be representing myself, even though I have been working around domain name issues for a while now.

In a number of ways I could comment on the WIPO recommendations, and you know so far this morning I have heard a lot of, I guess, rather ratified [rarefied] legalistic discussion. And I basically have a lot of experience, I guess, in the real world on how this thing plays out. And I guess that is really where I want to begin my comments from.

I personally registered two domain names that have been challenged on the basis and allegation of trademark infringement. And one of those domains I have had is composed of my own personal initials MTD.com.

And I think the WIPO proposals completely fails to address the core issues that resulted in the challenges in my domain registrations.

And the proposals are completely silent about and grant no protection for free speech and social and political commentary. It also fails to address an individual's right to use his or her own name or initials as part of a domain name, even for their own personal non-commercial website.

In both these instances the WIPO proposal which has the existing NSI Domain Name Dispute Policy, I think the attempt to extend the notion of trademark infringement to create a right of trademark holders that where none really currently exists.

While I think these are important matters, I am instead going to focus most of my comments on the potential and current impact of domain name policy on small businesses, which is a focus of which I have considerable personal experience.

I was the co-founder of an Internet service provider here in the Washington D.C. area, in the basement of a Maryland townhouse in the fall of 1991.

Six years later that company, [DIGEX] after going public, was sold for 150 million dollars.

In those days there was little to nothing said about domain name policy, except that .com was commercial, .org was non-commercial, and you better be an Internet service provider before you can even think about registering in .net.

While we could not have realized its value at the time, the domain name that we chose for our business in that environment was stable. And it was a solid foundation which we could rely on to do our business.

In those times we did not even fear that our domain name registration might be challenged by someone in California who sold plush toys, or produced cartoons, or even a huge communications conglomerate that did both of those things and wanted to be an Internet provider too.

Today, with a swift growth of the Net collisions among registrants and trademark holders in completely unrelated businesses are inevitable. Between registrants that have been using the Net for a decade, and huge businesses that eventually came to realize that the Internet is a medium in which they must have a presence.

What is of particular value to me when developing a policy that attempts to arbitrate these collisions, is the status of the small business. Of the entrepreneur who often in the history of the Internet, as in many other fields, has taken on the daunting task of developing new businesses of bringing whole new technologies, ways of communicating and even thinking to market.

And whether you are willing to admit it or not, the Internet was cobbled together by a bunch of renegade entrepreneurs who made this technology work. We took a medium that many at this time would not believe could be sold and made it into a business right under the nose of huge telecommunications firms.

Today, the business of building and selling the Internet infrastructure has grown up and been absorbed by many of those same firms. Many of the pioneers joined by a new generation have moved from the business of raw Internet service to the development of contact [content] and new applications.

And those people are as deserving of a stable domain name system as we were. A system in which those who came first, who staked their claim, taking their chances, and start a business can be assured that their registration will not be pulled out from under them, or that they must be defended at the cost of thousands or tens or hundreds of thousands of dollars.

One dispute was recently brought to my attention. A small Internet provider has received a domain name challenge from another company that is located on the other side of the United States and it is in a completely different business. They have already spent $40,000 preparing to defend themselves and the case hasn't even gone to trial yet.

Now, if my company, when I had six employees and had about a 1,000 customers struggling to keep up the growth, having to decide daily between paying our employees and buying new equipment, had then to face such a challenge we would have probably just gone under.

The climate which should be fostered by a domain name policy should be welcoming and inviting to small businesses, start up companies and entrepreneurs. Policies that only facilitate such challenges would only serve to drive people out of business.

In these challenges no one wins. The challenger, rather than choosing another name or making a reasonable offer to pay off the registrant, stands and looks like a bully to the general public. The registrant must pay to defend themselves and many can hardly afford to pay. Perhaps only the lawyers are the people who win.

I would instead propose that the value and domain names that not may be descriptive, but that they be unchanging. That when a business or individual registers a name, that the registration be permanent and, further, that trademark and intellectual property considerations are irrelevant and unconnected to domain name registrations.

Now, you are probably asking well, why would anyone seriously stage [state]such a thing in front of a body like this?

And there is a good reason. And that is a change is inevitable. And the notion that domain names must carry some relevant information in them relative to the product of the company or the service, is already obsolete.

And the growth of the Internet and the Web as fast as it has been growing, the domain name that often becomes useless as a means of finding a business. I can name plenty of examples and I think it is a good test to try, for instance, to look for a U.S. newspaper by guessing at the domain name. It basically does not work.

Now, me I can think of a couple of examples, for instance Sun Papers does not have Sun Papers in their domain name, they had sunspot.net, which isn't even a .com. The .com is already taken by a software firm.

A solution may be found in the next generation of search engines that measure the relevance of websites. I found one such search engine to be incredibly accurate when searching for corporations by the well-known trademarks. There is a search engine that is new, it’s in test right now, it’s a development standard for [at a] university, it’s called Gubal [Google]. I have had about better than 90 percent success rate or probably even better than that.

Where there is a text box and you put in your search term and it has two buttons for regular search and in the other button it says "I am feeling lucky". If you take a trademark and you press "I am feeling lucky", take Ford or Chevrolet or BMW or even Porsche, which has been a subject of some controversy, you put it in there and you go directly to the right website by pressing that button. And it seems to work most of the time.

Any search engine, of course, is useless once the sites are disabled or removed from the web.

Reindexing the search engine can take weeks or months. During that time, a relocated business completely loses its visibility on the web.

In a meeting I attended yesterday, I witnessed a particular attorney who said he defends a large corporation's intellectual property, precede his comments about domain name policy with the phrase "first do no harm".

I can think of no greater harm that can be done to small businesses on the web than a scorched earth policy invented by such attorneys to defend some newly created pseudo-legal concept [of] trademark infringement.

What I have been watching is the prosecution of people who have done nothing more than select strings of letters, identifiers that they register with the assumption that they would not be taken away from them, that they could be relied upon as a foundation to do their business.

Why are these largely irrelevant matches between strings of letters being prosecuted as a high crime?

Perhaps we are watching the growth of a make-work project for a class of bullies that targets those who are least likely to be able to defend themselves. I really can't find a very good explanation for why this is happening. It seems to be a futile and destructive quest to control a company's public image.

I don't think it really amounts to much. Frankly I think if such a policy is embodied in the WIPO proposals we need to bring it to the legal profession. It clearly sends the message it’s [open season] on small business. Questions?

(Mr. Don Heath, Internet Society): (Inaudible) How do you handle the following question? Let’s say you have got Porsche. You have a new Porsche you have spent millions of dollars on the trademark or billions maybe, I don't know. And either the name Porsche or a combination of which ................. upon your products. And I go to that site, I am fishing for Porsche, I got a pornographic site. How do you, is that justifiable? (Interruptions). In the sense that once you register a domain name you should be criminal. Isn't there some problem there?

(Mr. Michael Doughney): I think people who do such things are very easy to buy out. And that the cheapest way to deal with it is just to make an offer.

And I know that sounds absurd, but I am just speaking from the way I see it as a small businessman. I think we are dealing with a temporary problem here. I think that over the long-term, search engines and other technologies will allow this problem to basically just disappear, but ten years from now.

In the meantime, I think that we need the balance of what you are suggesting in that kind of situation against the situation of where another business who is legitimately using that name Porsche has been there first. And, it is awfully hard to go and to set up a maze or some sort of set of tests that decides that, okay, Porsche as a small business or Porsche as the porn star or Porsche as the international car company has any, that there should be any other term other than who came there first.

If Porsche the Soda register their trademark, I think they lose. They should register Porsche Sports Cars, there are 26, 23 or whatever the number of characters is to be put in the domain name. And then, over the long-term their indexes, there are other sites that register car companies.

There are all sorts of other ways to look up individuals and corporations on the web, other than that domain name. And I think that so much of what I see on the Net these days, and so much of even my own work when I spend a lot of time on the web, is not spent throwing domain names into the box at the top of my Netscape, it’s spent by either using a search engine or using indexes of other sites. Or even using advertising matters of things that I find of interest.

A gentleman yesterday in the U.S. meeting mentioned something that this is a matter of advertising that the entire domain name system is a matter of advertising, and maybe we need to think of it in those terms with other forms of advertising of making it well-known that Porsche is at Porsche.cars rather than Porsche, as in a possible hypothetical example.

A better way to deal with this, rather than running around and prosecuting and pulling people's domain names away from them when they have been in business and they have put all their time, their effort, their life-savings in setting up the business.

And thinking in terms of the legalistic way of looking at this is not a lot of difference between, and I am speaking as a former ISP policy person who had to go and figure out some sort of equitable policy of how to deal with users who were abusing systems of various kinds. And the point was that you could not set up a policy that says okay, well if it is a porn site, or if it is something I don't agree with, or if it is some individual who I perceive as having bought this domain name for speculative purposes, how do you set up a test to quickly verify that, that is true? I don't think you can.

(Mr. Don Heath): No, what I would just say is one, I wasn't really trying to suggest anything. My ..................... a question. At the same time I will try and suggest something. It seems to me that if someone capitalizes on the good name that someone has spent millions of dollars to create for purposes of their own ends which I ................ to that name. In other words, let’s use Porsche. They spent a lot of money building that name and if somebody uses that name specifically, and only because they know they could get attention and get traffic to their site, and then they use it for their own ends which has nothing to do with Porsche. I think that is wrong.

(Mr. Michael Doughney): I am not sure that there is an equitable, fast, cheap procedure to do what you are suggesting. I think that is out in fantasy land somewhere.

As a matter of speaking, as a small business person, a legitimate small business is going to come under fire because of a policy that maybe proposed just to address what you are suggesting. The hypothetical situation that you are addressing. So, that, yes, there will be a net cast and there will be people who are legitimately abusing someone's trademark caught up into this net.

I am concerned about all the rest of the people are going to get caught in that net. And speaking of someone who started an Internet at multi-million dollar ISP with about a thousand dollars in a little space in their friend's basement, okay, and basically put all of my time and effort and savings and everything into this thing. I am speaking as an ex-small businessman who started with that, you are going to be taking that away with some other people who have been in this same situation that I have.

(Mr. Don Heath ): My last comment. That I am very sympathetic to you and I agree with you and of course the Internet Society stands for that. However, the reason that this is so complicated is because there is the fact, the practical reality of significant expenditures on intellectual property, that this is the situation that I talked about does exist. How do you resolve it? You can't just let it be solved directly. But there has to be either the courts or something that is fast and cheap. That is the essence of the problem.

(Mr. Michael Doughney): I understand that, that is the essence of this problem. But the point I am trying to make is that there may well be other solutions other than legalistic ones. And that maybe we need to think in terms of technology search engines and other ways of getting around the Net to make this problem much less a big deal and occupy up so much of time, effort and money than it is right now.

(Mr. Francis Gurry): (Inaudible) ........................... So what would be your response, for example, in a situation in which take your own case, where you have established a domain name and a business under the domain name and a search engine comes along attributes that to someone else. So, we are now dealing with the search engine and whether the search engine, the operating search engine, does this because the authors of that name paid the highest price. (Inaudible). Either way, your domain name if you go to the search engine and register (Inaudible).

(Mr. Michael Doughney): Again, I think there is this confusion between an address space that should be stable in terms of if you register something and you have already developed a reputation in a certain location and that should not change. Relative to I guess there is the importers saying it is an integrity issue, that if a name or search engine is advertising something under this it should always be that and not directly somewhere else. Is that kind of where you are going?

(Mr. Francis Gurry): What I am saying is, I don't think there is much difference between the arguments that the intellectual property owners are making in respect of domain names. (Inaudible).

(Mr. Michael Doughney): I am making the assumption based on what I see in the search engines today where they do with integrity go through an index what is actually on the page with some accuracy, as I have seen so far. Now, I think that maybe you are talking about if this were to be done by a competitor there is certainly anti-competitive business practice statutes that would apply in those cases. How you would enforce them across the entire planet, I do not know. But that is a different issue than getting a firm address space and a firm address for a particular entity, never mind what its name is, and making that work over time, rather than getting it changed every six months depending on who’s complained lately.

(Mr. Francis Gurry): I think there is a longer ..................... and it works quite well often (Inaudible).

(Mr. James Branson): Just very quickly. Michael you have mentioned a kind of dichotomy of interests, the registrant on the one hand and a purported trademark on the other hand. And my question for you is, what about the consumer in this? What is your view about how to be able to have consumers find and have their expectations met when they are looking for particular goods or services. And if they don't find, for instance, something that they are not looking for, some type of, and I do not want to disparage any industry in particular, but pornography, for instance, then the child may not be looking for it but finds it because they are looking for Porsche cars.

(Mr. James Branson): I am asking what is your kind of proposal for how to be able to resolve the kind of real problem about helping consumers find what they are looking for, without having them to sift through a needle in a haystack?

(Mr. Michael Doughney): Well, I think that the crust [jist]of my comments is that the domain name is of limited utility when trying to find something that you want. And that, I keep getting back to search engines but there are no doubt other ways. I know there are companies that are on the Web right now spending a lot of money trying to figure out how to advertise their websites. And when I drive down the street these days I can't avoid seeing a vehicle that has a URL on it that may not necessarily, I guess a perfect example is Ryder Trucks, where it is www.yellowtruck.com, it does not have ‘Ryder’ in it. Putting out memorable hooks in their URLs, so that when people see them they could come back to their computers and go to the right place. But, again I think that these are methods that are outside the domain name system itself that they are using. And I don't know how that addresses what you are getting to.

Froomkin's question concerned whether or not I thought that domain names would become obsolete as an accurate means of reaching specific businesses, as DOS was obsoleted by Windows.

(Mr. Michael Doughney): I think we are already there. I mean, I am involved in another thing now where I do a lot of research on the web and I don't use a domain name for very much. I know that if I am looking, for instance, for a newspaper, I know that there is a website that links to all the newspapers, or I will use a search engine. Or I use any one of a number of other search engines, rather than relying on domain names and may occasionally try using a domain name, but it is not complicated by the fact that you have three often used top-level domains.

When you are talking about, say, organizations with three or four letter acronyms, there isn't any relationship that is reliable. I think a lot of it really depends on whether or not that organization was early into understanding that the Net was a resource they needed to be on. And whether or not they got their three letter acronym when it was still available, because today most three letter acronyms of any value I think have pretty much been gone for a long time. And of course you have to check around the multiple top-levels which are probably even more complicated in the future. So, it really, for me, it has already reached the level of using DOS.

(Mr. Francis Gurry): I was at the cinema recently and there was an advertisement. There were three frames essentially. The first was a man going up the escalator seen from the waist down, essentially. The second frame was the same man walking down the shopping mall seen from behind without the trousers on. And the third frame was a blue screen with www.levi.com and nothing else. There was no product, there was absence of the product, and there was no trademark. But we are not quite at loss commercially. Someone thinks there is value in a domain name there. Thank you very much Michael. We were due to have coffee, I am not sure whether it is around right now. That is it, we will proceed on with one more before coffee. The next person I think is Michele Farber, but I know she is not here at the moment. Is Ed Gerck present? No. Okay, then Michelena Hallie is present I think.

Transcript of Mike Doughney's comments before the Washington DC regional consultation, World International Property Organization, Internet Domain Name Process, March 10, 1999, at the U.S. Department of Commerce, Washington, DC.