The domain name system presents challenges to trademark law that are unique-in both kind and degree-and that promise to have long lasting effects. Because the domain name system is essentially non-legal in character and international in scope, it is not subject to the dictates of any particular legal sovereign. Conformity with trademark law is further frustrated by the fact that the domain name system was initially developed without any thought of its potential effects on trademark rights or traditional trademark regimes. All of these factors render it particularly difficult to control as a cultural force.
The remainder of this Article is divided into five parts. Part I briefly describes the development of trademark law as a property regime and outlines the property debate as it has unfolded in trademark scholarship. Part II describes the migration of the domain name system from a mere addressing mechanism to a shadow trademark system. Part III discusses five ways in which the domain name system diverges from traditional trademark law and considers the implications of such divergence. Part IV considers whether the domain name system is properly regarded as a property regime at all and examines whether it will be possible to limit that system's influence on trademark norms. Part V offers some concluding observations.
2001 Wis. L. Rev. 1251 (2001).