The evolving gTLD environment
Proposals to increase the number of available top-level domain names could radically change the online environment, says Andrew Mills of the European Communities Trademarks Association.
Introduction
Every time you browse the web or send an email, you make use of a domain name. Domain names turn the complexity of numbers like 192.0.34.126 into the simplicity of names such as icann. org. ICANN is the body that co-ordinates the structure of the Internet to make this translation from a domain name to a unique number, or computer address, possible.
As ICANN itself says: “Without that co-ordination, we wouldn’t have one global Internet.”
This article sets out a bird’s eye view of the domain landscape, focusing on the key issues for trademark lawyers and their clients, and in particular, the changes happening now and in the short term.
Domain names
Whilst, at their simplest, domain names are human-friendly alternatives to numerical computer addresses, they represent so much more than that. There are many different ways that people regard domain names, from being representations for brands through to embodiments of community spirit.
This growing importance shows up in the statistics. According to the Domain Name Industry Brief that VeriSign produced in February 2010, there were 192 million domain name registrations across all of the top level domain names (TLDs) at the end of 2009, together with more than 78 million country code top level domain names (ccTLDs).TLDs are the text at the end of domain names, such as .com and .net. The ccTLDs are countryspecific versions, for example, .co.uk or au.com. Additionally, different domain names might convey information about the person or organisation operating a specific website.
History
In 1998, when ICANN was founded, there were only eight TLDs: .com, .edu, .gov, .int, .mil, .net, .org, .arpa.
In 2000, ICANN introduced seven new TLDs: .aero, .biz, .coop, .info, .museum, .name, .pro.
And, in 2004, it introduced six more, taking the total to 21: .asia, .cat, .jobs, .mobi, .tel, .travel.
Internet users have reacted to these introductions with the full spectrum of responses, from welcoming them with open arms to expressing absolute horror.
What’s the problem?
The biggest problem in the TLD debate is the conflict between those who want an unrestricted Internet (because, they say, it is bound to lead to innovation and competition) and ‘big business’, which wants to protect its brands (and says that, so far, the domain name system has been a pirates’ paradise).
As the number of Internet users continues to rise (approximately 1.6 billion according to current figures), organisations are complaining about not being able to get the domain they want andusers are finding it increasingly difficult to find the information they seek.
When did this all happen?
Many people are still completely ignorant about ICANN’s proposals to introduce further TLDs.
Between December 2005 and August 2007, one of the bodies that make up ICANN, the Generic Names Supporting Organization (GNSO), undertook work on policy recommendations for the introduction of new TLDs. Its final report referred to the fact that consideration of the subject had begun in 1999 and that ICANN had learnt valuable lessons through two rounds of TLD introductions in 2000 and 2004.
Because of that work, the ICANN board approved the GNSO recommendations during its meeting in Paris in June 2008.
Whilst there may be many intellectual property practitioners, businesses and consumers that still question the need to introduce further domains, the time for this debate has passed.
If you want to have a say about the introduction of new TLDs, then you need to direct your constructive comments towards the consultations about implementation.
What might the new Internet landscape look like?
It is hard to say now, but we are likely to end up with variants of the following:
More geographic domain names
We already have .cat (for Catalonia in Spain) and .asia. Cities, counties or regions might apply for their own domain. I live in Nottingham, in the UK, and so I might be able to eventually register andrew-mills.nottingham perhaps.
Community-based domains
We might see religion-based domains, such .christian and .islam. Activity or hobby-related domains, such as .surfer, could become available.
Business-category domains
I will not be surprised to see .car or .shop in the future.
Brand-based domains
Any global business operating in different fields of activity in many regions will see the advantage in registering a brand TLD, and having direct control over it and the individual domain created under it. Will marketers see value in being, for example, .google rather google.com?
However, applying for and operating a new TLD will not be the same as buying a domain name—rather, it will be like submitting a tenderto operate a domain name registry business. As a result, predictions of the number of new TLDs vary from hundreds to thousands.
When will it happen?
There has been extensive Internet debate about these proposals, including on ICANN’s website, at least in terms of its proposals, consultations and public responses.
The recent ICANN meeting in Nairobi firmed up a number of issues and timescales. We can expect to see a further version of the applicant guidebook published in advance of the next ICANN meeting in Brussels in June 2010.
What are the stages?
Because of the consultation and feedback so far, ICANN has decided that it will not begin with an expressions of interest stage, as it had previously mooted. Many will find this move surprising.
The expressions of interest phase was to have been an opportunity for organisations to pre-register their interest in applying to operate a new TLD. There was to have been a fee of around $50,000, and this was going to be a deposit against the full fee for applying to run a new TLD (at something nearer to $180,000).
The ICANN board has taken the view that the potential delays to the new TLD programme and uncertainties of an expressions of interest phase outweigh the potential benefits. ICANN has decided, therefore, to just focus on clearing up the remaining issues. In a way, this is itself positive news for brand owners as it removes the risk of a pre-market or ‘blackmail’ opportunities.
Brand owners can take comfort by the additional resolutions of the ICANN board to include the trademark clearinghouse and Uniform Rapid Suspension System provisions in the next version of the draft applicant guidebook.
However, the timescales for the introduction of any new TLDs remain uncertain. If this concerns you, make sure that you follow developments on the ICANN website.
What it might mean for trademark holders
There are a number of concerns for trademark owners. These include:
• Many more TLDs potentially mean many more opportunities for third parties to pirate or squat on domain names that include trademarks
• The perception of the need to defensively register a greater number of domain names
• A greatly increased investment in time andcosts to deal with online protection and infringement issues
• Concern that third parties might apply to operate a TLD that incorporates someone else’s trademarks
• Running a brand as a domain comes with risk, marketing opportunities and cost.
Conclusions
The domain name landscape is about to undergo its biggest change in many years, and yet many organisations and their lawyers are still unaware.
It is important to consider this complicated topic thoroughly. There are many points of view and stakeholders.
Businesses would be wise to participate in further consultations on the subject.
Andrew Mills is head of IP and litigation at Experian. He can be contacted at: andrew.mills@ uk.experian.com
