By definition, a trademark is either a word, phrase, symbol or design, or combination of words, phrases, symbols or designs, which identifies and distinguishes the source of the goods or services of one party from those of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. See 15 U.S.C. Sec. 1127. The basic theories of trademark law that apply to non-personal name domain disputes provide some basis for addressing the problem of abusive domain name registration involving personal names. This concept suggests that the harm suffered by the litigating plaintiff is one of deception.
Trademarks serve an identifying function.
By leading the consumer to think that a product originates from a source that it does not, an infringer is able to divert sales into his own pockets. Dilution'' is another available cause of action under the Lanham Act. The section of the Lanham Act that provides for remedies in cases involving the dilution of famous marks may also be illuminating as a basis for personal name domain name protection. Unfair competition is a commercial tort that evades precise definition. 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition Sec.