Expanding trademark law creates perverse incentives for overwhelming litigation.

The ACPA is a formidable federal weapon, the use of which can lead to results as coercive as cybersquatting itself. Under the new provisions, it is easier for a trademark owner to overextend trademark rights. The cost of litigation normally serves as a disincentive to litigate unless the odds of success are sufficiently high. 331 Because costs are lower from the perspective of large companies, and since the ACPA makes liability easier to attain, large companies are the chief beneficiaries of the ACPA.

The ACPA, while strengthening large companies' already superior positions, weakens smaller companies' positions. Since the parties' product lines, relevant in traditional trademark analysis, is no longer an issue in the cybersquatting context, 332 defendants will be more vulnerable in domain name suits. 333 Since larger companies whose trademarks represent extensive investments are more likely to bring actions to guard their marks, 334 smaller or younger companies in unrelated markets may find that their trademark rights are contracting. 335 The trademark misuse doctrine would help remedy this imbalance. While codification of the trademark misuse doctrine with general applicability could be troublesome, a narrowly tailored version to be applied specifically to domain names could effectively be drafted in accordance with established standards of U.S. trademark law. The scope of such a doctrine under trademark law could easily be limited, as the ACPA already carves out such a limitation in the body of trademark law. Just as increased risk deters cybersquatting, a misuse doctrine in trademark law would deter reverse squatting.

Any legal remedies, however, should be regarded as imperfect solutions. These solutions should be instituted to remedy the existing trademark problems in domain names. Another species of remedy seeks not to regulate the users of the Internet, but rather to effect changes in the management of the Internet itself. These are technological solutions. As some commentators have suggested, creating "link pages," 336 "directories," or "gateways" would help alleviate the problems with domain names. 337 These terms, used synonymously, refer to a mechanism through which more than one user could hold the same domain name. The hypothetical Widget Corporation wanting to establish a commercial web site would want to register "widgets.com" as a domain name. However, another hypothetical company manufacturing Widgets stuffed animals would also want that domain name. Both parties could hold that domain using a link page. A customer of either firm, intuitively entering "widgets.com" as the desired address would be referred to a link page, on which would be displayed information on both firms. The user would then just click on the desired site. This solution could be a viable one and is in line with the gTLD-MoU's stated goal of insulating local registrars from the dispute process.

The White Paper expresses a similar goal, proposing to place the burden of researching a desired domain name onto each domain name registrant. 338 Thus, link pages could help bridge the gap between the self-governance faction (whose views are embodied in the gTLD-MoU) and the regulatory faction (whose views are reflected in the White Paper). This unity would be of the sort that has been called for in order to establish a necessary self-governing system on the Internet. 339 Indeed, some proponents of a self-governing Internet believe that if left to its own devices, the Internet will evolve its own social order whereby Internet users will develop their own contractual agreements. 340

Technological solutions offer several benefits. First, the same people who develop and manage the Internet, the so-called "'netizens," will be the ones who implement them. These netizens, including registrars and policy-setting bodies such as ICANN, would act as a Self-Regulating Organization ("SRO"), guided by market forces. The Internet represents a unique market--one in which there is an equalizing force. The large corporation would no longer be able to silence the smaller interest in this new SRO. Everyone would be given the simple choice of either abiding by the rules of the Internet community, or not joining the community at all. Netizens could effectively serve the managerial role, as they possess the most know-how and are more in tune with the specific needs of the Internet. Moreover, technological innovations are perhaps best suited to address the Internet--in itself a technological innovation. These solutions will be able to most efficiently remedy the current and future issues arising from the Internet. A final advantage, and perhaps the most important one, is that they are the most far removed from slow-moving government bureaucracies. Under the political machinery of paternalism, the Internet's natural evolution would grind to a halt.

However, technological solutions must also be tempered by the injection of prudent organizational considerations. While technical minds have the requisite know-how, that expertise is for naught without a solid organizational framework. As has been suggested, knowledge in how to structurally order an organization is often sorely lacking in the technical realm. 341 The Internet's development and its evolution thus far are the result of "Cybercitizens" such as Professor David Farber and Jonathon Postel, founding fathers of the Internet. 342 There are still significant hurdles to surpass, not the least of which is the tragic and untimely death of Jonathon Postel in 1998. 343

Notwithstanding the current and potential barriers to resolution of the domain name conflict, such a resolution is far from impossible. The best chances for such a resolution lies in the laissez-faire approach of the self-governance advocates. This is not to say that all regulation should cease or that governments should sit idly by. However, any such governmental presence should be limited to a bare minimum, and any regulations should be the natural outgrowth of the natural structure of the Internet. It would be foolish to propose to leash the Internet as it has evolved--as a mammoth extraterritorial global presence.

VI. Conclusion

The Internet is a truly singular creation, providing an unprecedented pooling of information. However, this diversity of thought serves as both boon and bane. Individuals of virtually every description are on the web--from recreational user to small businessperson to large corporation. Each group has its own agenda for use of its piece of the Internet. Technical limitations and the wrinkled, blurred contours of trademark law, coupled with the disparate interests of Internet users have caused problems in the reservation of domain names. The lack of uniformity in cyberspace mirrors the schism between real-world entities. Businesses, national governments, and international bodies all seem to be at odds with one another as to how to resolve the problem. Technological solutions will provide a definitive and lasting resolution of this problem. The introduction of linking technology has the potential to provide a remedy by further opening up the vastness of cyberspace. This technology would allow many users to use a domain name concurrently, much as many parties can own the same or a similar trademark in the real world. These link pages will serve as electronic yellow pages and settle the conflicts between members of the Internet community. However, this technology is not yet available, while trademark-domain name disputes are abundant now. Thus, legal remedies should be crafted now to help establish a satisfactory resolution of current disputes. New legal barriers should be erected to increase the deterrent pressures on extortive cybersquatters. These legal barriers would increase the damages available to successful plaintiffs, and thereby increase the risk involved in cybersquatting. However, since such legal measures can have the adverse effect of creating a flood of litigation, simultaneous action should be taken to deter equally extortive action on the part of trademark owners. One such remedy would be the creation of a new tort action for trademark misuse, which would deter trademark owners from unlawfully extending their trademark rights to wrongfully force divestment of domain names. Trying to effect changes to cyberspace as if it existed in a vacuum are bound to have limited effects. Since cyberspace has permanent ties to the real world, only bilateral efforts will be effective. Legal and technological remedies, working in conjunction, would bring the needed unity between the real world and cyberspace.