Over the past few months I have written a series of pieces under the heading “Brand as Navigator” on the general topic of how trademarks functions as navigational aids (domain names, paid search, meta-tags, keywords). Identical or similar trademarks are able to co-exist in the real world with (acceptable levels of) confusion only because of implicit or explicit context (most notably indications of geographic location and field of goods). FORD, without context, can be a misleading keyword, metatag or domain name. The DNS, which could be a smart system but is administered like a dumb system, will never function effectively as a brand navigational system until it embodies similar levels of context to that of a directory. It seems that it would be better instead to just build good directories.
Consider in contrast telephone numbers. What is Sony’s telephone number? On the whole, the telephone numbering system is “dumb” in the sense that there is no relationship between the number and the resource (8xx numbers being an exception). There are sometimes trademark cases arising from telephone numbers (1-800-MERCEDES being a recent example), however I would say such cases are rare (for a variety of reasons). Because telephone numbers are not guessable, there is (virtually) no equivalent to cyber-squatting. The context which allows common names to “resolve” without confusion is supplied outside the network by ‘smart’ navigational systems – yellow page directories for example. The topical headings “Modeling Agencies” and “Automobile Dirs. – New Cars” allows for two unrelated entities to utilize the common name FORD across the telephone system.
The domain name system is half-way between a smart system and a dumb system and that’s what causes the trademark problems. Some ‘one-of-a-kind’ names can only designate one origin without confusion- TEENAGEMUTANTNINJATURTLES.COM or FORDMODELS.COM for example. Unfortunately, all these names are distributed as if they were ‘dumb’ names – first come, first served. So you can register a unique name before the unique name’s owner did. And this feature of the DNS lead to millions of dollars in external costs.
In order to reduce some of the external costs arising from mis-allocation, the DNS is taking half-steps towards being a smart system. Through the UDRP and through ‘sunrise’-like allocation systems, there is some attempt to match ‘one-of-a-kind’ names to their ‘rightful’ owner after-the-fact or before-the-fact (I am using quotation marks like tongs to handle hot terms). I think that both registrars and trademark owners are not satisfied with the level of cost arising from the present allocation method. Also, these remedial systems are themselves mis-used.
Making the domain names themeselves smarter a little bit reduces external costs a little bit. With “chartered” TLDs there is some attempt to build context into the name itself. DELTA.AERO cannot be confused with Delta Dental. The early reports are that there is no abusive registration within the structured TLDs (and little non-abusive registration as well). However, while adding structured TLDs will result in lower external costs than adding, for example 1 or 2 more unstructured gTLDs, I think that neither course will solve the issue of how to allow for quick navigation to small (commonly-named) businesses. Neither the creation of 100 more .com’s, nor the creation of a .PIZZA, will satisfy all the JOEs and JOHNs who want to be known by a short name on the net.
As a short aside, I note that domain names can be made dumber as well and this would (1) reduce external costs while (2) expanding the namespace. If you just needed a domain name, you could be assigned a name like the old Telex address system – there would be no semantic meaning, but it would consisting of randomly generated numbers and phonemes (like MARTRADE7). It would be memorable in a short-term memory sense, not a branding sense. This would move the DNS away from being a bad directory and back to being an addressing system (which it was engineered to be). This would also reduce domain names to fungible commodities (with lower prices).
Getting back to the common name problem, I submit that the “meta-problem” for brand owners (large and small) is not really how to minimize the external costs of the DNS (although that problem has kept many people like me busy for years). The real “meta-problem” is how to allow brands to efficiently function as navigators. Guessable domain names for all is not logistically possible but browsable names are. Browsable, granular search engines, can allow me to ask for SONY, and distinguish between the SONY manufacturer, the SONY-authorized service center, and the cheapest place to get a SONY camcorder. Also, I can look up BROADWAY PIZZA and get the one in Armonk, not the ones in Manhattan or in Minneapolis.
It seems that the web is making progress towards such services. I would certainly keep an eye on Froogle. I was also intrigued by 37signals.com which is demonstrating a “better Google.” (I learned of this via Kottke.org). So we should expect search engines to continually improve.
However something that can accelerate towards browsable brand navigation will be the promotion of such systems by brand owners. We see brand owners identifying AOL keywords in advertising – I don’t see advertisers communicating other ways to identify their web presense. At some point businesses may say in their ads, “To order, Google [or Froogle or Overture] Joe’s Pizza, Armonk” (or words to that effect).