[Congressional Record Volume 144, Number 22 (Friday, March 6, 1998)]
[Senate]
[Pages S1525-S1527]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY:
  S. 1727. A bill to authorize the comprehensive independent study of 
the effects on trademark and intellectual property rights holders of 
adding new generic top-level domains and related dispute resolution 
procedures; to the Committee on the Judiciary.


                    study authorization legislation

  Mr. LEAHY. Mr. President, from its origins as a U.S.-based research 
vehicle, the Internet has matured into a democratic, international 
medium for communication, commerce and education. As the Internet 
evolves, the traditional means of organizing its technical functions 
need to evolve as well.

  In the days before the Internet, the U.S. Defense Department's 
research network--called the ARPAnet--used a naming system that would 
map a computer's numerical address to a more user-friendly host name. 
With only a few computers linked to the ARPAnet, the U.S. Defense 
Department's research network maintained a master list of each 
computer's numerical address and host name. Sending an electronic 
message or file was a simple matter of looking up the computer's host 
name on a master list to find its numerical address. As the number of 
host computers grew, however, it became clear that a new addressing 
system was needed. Thus, in 1987, the current Domain Name System (DNS) 
was created.
  On today's Internet, the DNS works through a hierarchy of names. At 
the top of this hierarchy are a set of Top Level Domains that can be 
classified into two categories: generic Top Level Domains (gTLD) such 
as ``.gov,'' ``.net,'' ``.com,'' ``.edu,'' ''.org,'' ``.int,'' and 
``.mil,'' and the country code Top Level Domain names, such as ``.us'' 
and ``.uk.'' Before each TLD suffix, is a Second Level Domain name.
  Since the Internet is an outgrowth of U.S. government investments 
carried out under agreements with U.S. agencies, major components of 
the DNS are still performed by or subject to agreements with U.S. 
agencies. Examples include assignments of numerical addresses to 
Internet users, management of the system of registering names for 
Internet users, operation of the root server system, and protocol 
assignment.
  For the past five years, a company based in Herndon, Virginia, named 
Network Solutions, Inc., has served under a cooperative agreement with 
the National Science Foundation as the exclusive registry of all second 
level domain names in several of the gTLDs (e.g., .com, .net, .org, and 
.edu). This contract will end next month, with an optional ramp-down 
period that expires on September 30, 1998.
  The National Science Foundation's exclusive arrangement with Network 
Solutions regarding the assignment of domain names has drawn criticism 
from Internet users. This arrangement has also been the subject of 
antitrust scrutiny by the Justice Department and of two lawsuits in 
Federal Court. I wrote to Attorney General Reno in July 1997, asking to 
be kept apprised, as appropriate, of any developments in the Justice 
Department's antitrust investigation concerning the assignment of the 
most popular domain names for Internet addresses. I was assured that 
the Department's objective was consistent with my concerns to ensure 
that the DNS functions, to the maximum extent possible, in an open, 
competitive environment that maximizes innovation and consumer choice.

  Despite the controversies associated with certain aspects of Network 
Solutions' management of the gTLDs, many of us have been concerned 
about what would happen at the end of that company's exclusive 
contract. Simply put, how will we avoid chaos on the Internet and the 
potential risk of multiple registrations of the same domain name for 
different computers?
  That is why I welcomed the Administration's intent to address this 
issue comprehensively. In the Administration's ``Framework for Global 
Electronic Commerce,'' the President last year directed the Secretary 
of Commerce to privatize, increase competition and promote 
international participation in the DNS. At the beginning of this year, 
I wrote to Secretary Daley requesting that the Administration present 
its policy recommendations regarding the management of the DNS without 
further delay, lest the stability and integrity of the Internet domain 
name system be threatened.
  On January 30, 1998, the Commerce Department released a ``Green 
Paper,'' or discussion draft, entitled ``A Proposal to Improve 
Technical Management of Internet Names and Addresses,'' proposing 
privatization of the management of the DNS through the creation of a 
new, not-for-profit corporation. This organization would set policy for 
the allocation of number blocks to regional number registries; oversee 
operation of the root server system; determine when new top-level-
domains should be added to the root system; and coordinate development 
of protocol parameters for the Internet.
  While the corporation would be able to decide when to add new gTLDs, 
the Administration has indicated that it does not want to wait until 
the corporation is formed to bring competition to the domain name 
registration process. Thus, the Green Paper proposes to allow firms 
other than Network Solutions assign addresses that end in the gTLDs: 
``.com,'' ``.org'' and ``.net.'' The Green Paper also proposes the 
creation of five new gTLDs, each of which would be based on registries 
operated by separate firms. The Administration continues to solicit 
comments on the Green Paper from the DNS stakeholder community, and 
hopes to finalize and begin implementation of the Green Paper's 
proposals in April 1998.
  Developing this proposal to privatize and increase competition in the 
DNS was an important and difficult task. I am delighted that the 
Administration undertook this herculean effort and has finally released 
its draft proposal to improve the DNS. I especially applaud the hard 
work of Ira Magaziner, Senior Advisor to the President for Policy 
Development, Larry Irving, Assistant Secretary of Commerce for 
Communications and Information and Administrator of the National 
Telecommunications and Information Administration (NTIA), and Becky 
Burr, Associate Administrator, NTIA, Office of International Affairs.
  I fully agree with the four basic principles guiding the 
Administration's proposal to structure this evolution; namely that 
private sector control is preferable to government control; competition 
should be encouraged; management of the Internet should reflect the 
diversity of its users and their needs; and stability of the Internet 
should be maintained during the transition period. These shared 
principles form the basis of a solid framework from which to determine 
the evolution of the DNS. That being said, I think it prudent that the 
Green Paper--already shaped by months of discussions with a variety of 
Internet stakeholders--is in the form of a discussion draft and that 
additional public comments are being solicited. The Internet is a 
democratic form of communication, and changes in its management 
structure warrant consideration through an open and democratic process.
  Among the more challenging questions presented by the Green Paper are

[[Page S1526]]

how to protect consumers' interests in locating the brand or vendor of 
their choice on the Internet without being deceived or confused, and 
how to protect companies from having their brand equity diluted in an 
electronic environment. Adding new gTLDs, as the Green Paper proposes, 
would allow more competition and more individuals and businesses to 
obtain addresses that more closely reflect their names and functions. 
On the other hand, businesses are also rightly concerned that the 
increase in gTLDs may make the job of protecting their trademarks from 
infringement or dilution more difficult. Recent news reports have 
highlighted the prevalence of ``stealth'' domain name addresses, which 
are slight spelling variations on the addresses of popular Web sites 
used to increase visits by potential subscribers. For instance, as 
reported in the March 2, 1998 edition of Newsweek, 
``www.whitehouse.com'' is an explicit adult Web site. One needs to use 
the domain name ``www.whitehouse.gov'' to reach the White House's web 
site.
  Congress recently addressed certain trademark issues with passage of 
the Federal Trademark Dilution Act. That legislation proscribes the 
dilution of famous trademarks in circumstances that might not otherwise 
amount to trademark infringement. When that legislation passed the 
Senate, I noted that ``no one else has yet considered this 
application,'' but expressed ``my hope that this antidilution statute 
can help stem the use of deceptive Internet addresses taken by those 
who are choosing marks that are associated with the products and 
reputations of others.'' Congressional Record, S 19312 (December 29, 
1995).
  Over the past several years, I understand that disputes between 
trademark owners and domain name owners have been on the rise. To 
address the legitimate concerns of trademark holders and the diverse 
needs of Internet users, the Green Paper proposes that a study be 
undertaken on the effects of adding new gTLDs and related dispute 
resolution procedures on trademark and intellectual property rights 
holders. Specifically, the Green Paper states:

       We also propose that . . . a study be undertaken on the 
     effects of adding new gTLDs and related dispute resolution 
     procedures on trademark and intellectual property rights 
     holders. This study should be conduced under the auspices of 
     a body that is internationally recognized in the area of 
     dispute resolution procedures, with input from trademark and 
     domain name holders and registries.

  Although some of the recommendations in the Green Paper have proved 
to be controversial, I understand that DNS stakeholders of diverse 
background and interests, including those businesses who are concerned 
that the increase in gTLDs may make the job of protecting their 
trademarks from infringement or dilution more difficult, such as ATT 
and Bell Atlantic, support this Green Paper recommendation. The 
legislation I introduce today directs the Secretary of Commerce, acting 
through the Assistant Secretary of Commerce and Commissioner of Patent 
and Trademarks, to request the National Research Council (NRC) of the 
National Academy of Sciences to conduct a comprehensive study of the 
effects on trademark and intellectual property rights holders of adding 
new gTLDs and related dispute resolution procedures. The study shall 
assess and, as appropriate, make recommendations for policy, practice, 
or legislative changes regarding: (1) the short-term and long-term 
effects on the protection of trademark and intellectual property rights 
and consumer interests of increasing or decreasing the number of gTLDs; 
(2) trademark and intellectual property rights clearance processes for 
domain names, including whether domain name databases should be readily 
searchable through a common interface to facilitate the ``clearing'' of 
trademarks and intellectual property rights and proposed domain names 
across a range of gTLDs; identifying what information from domain name 
databases should be accessible for the ``clearing'' of trademarks and 
intellectual property rights; and whether gTLDs registrants should be 
required to provide certain information; (3) domain name trademark and 
intellectual property rights dispute resolution mechanisms, including 
how to reduce trademark and intellectual property rights conflicts 
associated with the addition of any new gTLDs and how to reduce 
trademark and intellectual property rights conflicts through new 
technical approaches to Internet addressing; (4) choice of law or 
jurisdiction for resolution of trademark and intellectual property 
rights disputes relating to domain names, including which jurisdictions 
should be available for trademark and intellectual property rights 
owners to file suit to protect their trademarks and intellectual 
property rights; (5) trademark and intellectual property rights 
infringement liability for registrars, registries, or technical 
management bodies; and (6) short-term and long-term technical and 
policy options for Internet addressing schemes and their impact on 
current trademark and intellectual property issues.
  The bill also calls upon the Secretary of Commerce to seek the 
cooperation of the Patent and Trademark Office, the National 
Telecommunications and Information Administration, other Commerce 
Department entities and all other appropriate Federal departments, 
Government contractors, and similar entities with the study.
  I use the Internet frequently, and I therefore have a personal stake 
in ensuring that the evolution of the DNS is one that makes sense from 
an end-user perspective. In addition, I am proud to say that Vermont 
companies have been leaders in cyber selling. Both users and companies 
seeking to do business on the Internet have a direct stake in ensuring 
that the DNS develops in a manner that protects the rights and promotes 
their shared interests.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1727

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. STUDY OF EFFECTS ON TRADEMARKS AND INTELLECTUAL 
                   PROPERTY RIGHTS OF ADDING GENERIC TOP-LEVEL 
                   DOMAINS.

       (a) Study by National Research Council.--Not later than 60 
     days after the date of enactment of this Act, the Secretary 
     of Commerce, acting through the Assistant Secretary of 
     Commerce and Commissioner of Patents and Trademarks, shall 
     request the National Research Council of the National Academy 
     of Sciences to conduct a comprehensive study, taking into 
     account the diverse needs of Internet users, of the short-
     term and long-term effects on trademark and intellectual 
     property rights holders of adding new generic top-level 
     domains and related dispute resolution procedures.
       (b) Matters To Be Assessed In Study.--The study shall 
     assess and, as appropriate, make recommendations for policy, 
     practice, or legislative changes relating to--
       (1) the short-term and long-term effects on the protection 
     of trademark and intellectual property rights and consumer 
     interests of increasing or decreasing the number of generic 
     top-level domains;
       (2) trademark and intellectual property rights clearance 
     processes for domain names, including--
       (A) whether domain name databases should be readily 
     searchable through a common interface to facilitate the 
     clearing of trademarks and intellectual property rights and 
     proposed domain names across a range of generic top-level 
     domains;
       (B) the identification of what information from domain name 
     databases should be accessible for the clearing of trademarks 
     and intellectual property rights; and
       (C) whether generic top-level domain registrants should be 
     required to provide certain information;
       (3) domain name trademark and intellectual property rights 
     dispute resolution mechanisms, including how to--
       (A) reduce trademark and intellectual property rights 
     conflicts associated with the addition of any new generic 
     top-level domains; and
       (B) reduce trademark and intellectual property rights 
     conflicts through new technical approaches to Internet 
     addressing;
       (4) choice of law or jurisdiction for resolution of 
     trademark and intellectual property rights disputes relating 
     to domain names, including which jurisdictions should be 
     available for trademark and intellectual property rights 
     owners to file suit to protect such trademarks and 
     intellectual property rights;
       (5) trademark and intellectual property rights infringement 
     liability for registrars, registries, or technical management 
     bodies; and
       (6) short-term and long-term technical and policy options 
     for Internet addressing schemes and the impact of such 
     options on current trademark and intellectual property rights 
     issues.
       (c) Cooperation With Study.--
       (1) Interagency cooperation.--The Secretary of Commerce 
     shall--
       (A) direct the Patent and Trademark Office, the National 
     Telecommunications and Information Administration, and other 
     Department of Commerce entities to cooperate fully with the 
     National Research Council in

[[Page S1527]]

     its activities in carrying out the study under this section; 
     and
       (B) request all other appropriate Federal departments, 
     Federal agencies, Government contractors, and similar 
     entities to provide similar cooperation to the National 
     Research Council.
       (2) Private corporation cooperation.--The Secretary of 
     Commerce shall request that any private, not-for-profit 
     corporation established to manage the Internet root server 
     system and the top-level domain names provide similar 
     cooperation to the National Research Council.
       (d) Report.--
       (1) In general.--Not later than 12 months after the date of 
     enactment of this Act, the National Research Council shall 
     complete the study under this section and submit a report on 
     the study to the Secretary of Commerce. The report shall set 
     forth the findings, conclusions, and recommendations of the 
     Council concerning the effects of adding new generic top-
     level domains and related dispute resolution procedures on 
     trademark and intellectual property rights holders.
       (2) Submission to congressional committees.--Not later than 
     30 days after the date on which the report is submitted to 
     the Secretary of Commerce, the Secretary shall submit the 
     report to the Committees on the Judiciary of the Senate and 
     House of Representatives.
       (e) Authorization of Appropriations.--There is authorized 
     to be appropriated $800,000 for the study conducted under 
     this Act.
                                 ______