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    New Top Level Internet Domains – To Be Or Not To Be?

    Published on 6 June 2009 @ 9:57 am

    By for Intellectual Property Watch

    Now even trademark owners and large businesses do not really agree on the planned extension of the internet domain name system to include hundreds of new top-level domains (TLDs) like .com.

    The Implementation Recommendation Team (IRT) set up by the IP Constituency of the Internet Corporation for Assigned Names and Numbers (ICANN, the internet’s technical oversight body) has filed its final report on trademark protection in the extended DNS and had to accept criticism from all sides, including big brand owners.

    “If I am bakery Otto [a generic reference], I am losing in this,” said a representative of a small company at a late May brand.TLD Roadshow in Frankfurt, Germany. Community applications under current rules might lose against speculators, warned consultants from Mind + Machines.

    “We are keenly aware that you cannot please all of the people all of the time, but we hope that readers of our report will consider the benefits of our efforts, which we believe will accrue to all branches of the ICANN family,” wrote the 18 IRT members in a resigned-tone prescript to their final report. “After all, in attempting to craft a tapestry of interlinked recommendations that we believe are fair to everyone, it might be that we end up pleasing no one?”

    The report is now open for comments on the ICANN website for another four weeks.

    ICANN previously asked rights holders to come up with possible solutions to their concerns (IPW, Information and Communications Technology/Broadcasting, 12 March 2009).

    While admonishing existing “malicious behaviours like spamming and phishing” and warning that “lurking in the darkest corners of cyberspace are the unscrupulous, the dishonest and the dangerous who prey on the unwary,” the report sticks to its original draft recommendations with some fine-tuning.

    The core idea of the group is the set-up of an “IP-Clearinghouse” where information on IP rights could be registered for a fee by trademark owners. Trademark owners and registries could then use services like a TLD pre-launch IP claims list or an “IP watchlist” that would inform the trademark owner about every potential TLD-registration using his mark in some form.

    With regard to a Global Marks Protection List (GMPL) that would offer high protection at both the top-level (like .ford) and the second-level (ford.car) in the new TLD space, the IRT withdrew concrete proposals on the criteria that would allow marks to be added to the list.

    In its draft version, the IRT had set the barrier high by requesting a trademark owner have at least 200 trademarks registered in 90 countries, all marks registered before 1 November 2008, and at least 50 second-level domain name registrations in 50 TLDs in order to be on the GMPL and receive higher protection.

    Very few trademarks would make it to that list, said Dirk Krischenowski, founder of dotberlin, aspirant for a the .berlin TLD, and dotzon, a consultant for new TLD applicants. The decision by the IRT not to recommend “a single all-encompassing Trademark Reserved Names List as a universal protective mechanism” was criticised heavily by some trademark owners.

    Auto Companies Put on Brakes

    A group of automobile companies including Volkswagen and Ford rejected the IRT draft report, warning that while the all-encompassing trademark list might be over-inclusive, the GMPL would be under-inclusive.

    “In the absence of any ground for finding a public interest in the expansive availability of ‘.trademark’ domains [such as .ford], ICANN should adopt an ‘all-encompassing’ list that protects trademark holder and consumers,” the car companies said.

    A global rejection of the trademark TLD is a “far superior answer than the granular solutions of the IRT,” VW and Ford wrote to the IRT. Nothing could be gained, they wrote, as second level domains controlled by trademark owners already do the job.

    Yet Krischenowski and other experts think that .brand TLDs will replace brand.tld (second-level TLDs) in the years to come. Even with car manufacturers they see differences with regard to the strategies taken, with some car manufacturers possibly interested in offering each customer a website dedicated to his own car according to a serial number, for example, 328765.cartrademark. Trademark owner strategies seem not to be cast in stone yet: Toyota, for example, first partnered with VW and Ford only to withdraw its signature later.

    While trademark owners try to come to grips with the question of whether they might win or lose with new top-level domains, experts already warn that smaller companies and community applications are disadvantaged by the application process.

    Mind + Matters said in its intervention during the IRT comment period that more open community applications like .golf, .women, .islam or .gay would lose the race against deep-pocketed speculators because of the scoring system in the current planned ICANN TLD application procedure. Because broader communities want to be open for every member they would be declared open TLD applications – contrary to company TLDs – and thrown into auctions, cautioned Mind + Matters.

    “I think new TLDs should be ‘shared TLDs’. They should not serve only one party,” said Werner Staub, secretary of the registry provider CORE.

    Shared TLDs could be corporate TLDs, he said, for example, services might be offered under a TLD like .skype. Single company domains without such services on the other hand would not really serve the public interest and might only create a land rush in the DNS root because everyone would be afraid not to register his trademark as a TLD.

    “In the long term only speculators can win in this,” Staub said. For smaller community applications like .gal (Galicia), .scot (Scotland) or .cym (Wales), on the other hand, the high application fees would be painful.

    IRT Report Open for More Comments

    The IRT report is again open for public comment to the ICANN board, which has to decide how to go forward with the proposals for an IP Clearing House, a uniform rapid suspension system (URS), post-delegation dispute mechanisms, and the use of an algorithm in string confusion review during initial evaluation.

    With regard to the Whois system of website owner contact information, ICANN staff reacted to public comments by announcing that it would pursue a so-called thick Whois model. This means that data on domain registrants have been centrally stored with the registry instead of being split between local registrar and central registry.

    From the point of view of data protection experts, the thin whois offered the possibility to adapt publishing of the domain name registrants’ data to local law. A thick registry model, on the other hand, means that registrants would be obliged to comply with the law that applies to the respective TLD registry. The IRT even asked for a central Whois database managed by ICANN.

    With the trademark questions still under discussion, experts already expect another delay for the new TLD application process. ICANN just announced that “the programme is expected to launch (i.e., applications will be accepted) in the first quarter of 2010, but we will not open the process until concerns about the overarching issues have been addressed.”

    Public consultations on what are labelled as overarching issues focusing on trademark protection and the potential for abusive conduct will take place at the ICANN meeting in Sydney, London, New York, Hong Kong and Abu Dhabi in the coming weeks.

    In addition, there are still discussions about the limits for geographic TLDs with governments and this could prove, according to observers, another roadblock on the stony way to new generic TLDs.

    Monika Ermert may be reached at info@ip-watch.ch.

     

    Comments

    1. Dennis Nilsson says:

      It’s enough with TLDs.

      With hundreds of new top-level domains Internet should be more hardly to navigate. The easy way to use Internet with more TLDs should “destroy” the good things with Internet.

      What’s the reason for new TLDs?

    2. Michael Berkens says:

      Dennis

      The new gTLD’s are about one thing, money for ICANN.

      When ICANN talks about demand for the new gTLD”s they are talking about demand from suppliers who want to make money running a registry, not demand from the consumers, which seems to be null.

      These are the issues we blog about everyday on our blog about the domain industry, we invite you to check it out at thedomains.com


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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