Chapter 12: Property Rights and Institutional Change: Some Musings on Theory

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1. 'The path of institutional change is shaped by (1) the lock-in that comes from the symbiotic relationship between institutions and the organizations that have evolved as a consequence of the incentive structure provided by those institutions, and (2) the feedback process by which human beings perceive and react to changes in the opportunity set' (North 1990, 7). I consider this aspect of North's theory to be suggestive and interesting but not very well articulated and badly in need of further development and testing.

2. The vast majority of cybersquatting cases involve domain name registrations that are not being used, and hence cannot confuse or deceive customers.

3. For more than a year after the new domains were authorized, ICANN was still presenting them to the public as a 'proof of concept,' an experiment, a step into unknown territory. This despite the fact that over 100 country code TLDs had been added to the root since 1994 and that there is nothing unknown or experimental about the process of adding a new name to a name server's zone files (it happens thousands of times a day in the .com zone).

4. WIPO notes that in the case of third-level names registered under commercial second-level domain name holders, such as .uk.com, the UDRP may not be applicable. It considers this to be a bad thing. Also, in authorizing the .name top-level domain, ICANN encouraged the registry to impose controls and exclusions on third- and fourth-level assignments in order to prevent trademark conflicts.

5. Network Solutions backed away from a strong assertion of property rights over .com, however, choosing to allow its generic TLDs to be shared in exchange for avoiding litigation with the U.S. government and the continuation of its registry contract. As Libecap's (1989) model suggests, it would be highly unlikely for an public institutionalization process to recognize Network Solutions' claim because of the extreme concentration of the share distribution (about 75 percent of the total global market) and the fact that Network Solutions' original control of .com, .net, and .org was the product of a U.S. government contract.

6. Image Online Design v. CORE Association and Ken Stubbs, U.S. District Court, Central District of California, CV 99-11347 RJK, June 22, 2000.

7. GAC communiquÈ, August 1999.

8. PTO Examination Guide No. 2-99, 'Marks Composed, in Whole or Part, of Domain Names,' September 29, 1999.

9. J. Thomas McCarthy, Trademarks and Unfair Competition, 4th ed. (1996) and Supplement (2000), Section 7:17.1 at 7-27. West Group.

10. There is nothing about the technology or economics of DNS that requires a registry to be shared. Indeed, a registry with recognized property rights in its string could choose whether or not to open its registry up to multiple registrars. Many of the world's domain name registries are not shared.

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