ICANN Expands Domain Names: ICANN Opens Up Available Top Level Domains
By Joshua Gruenspecht - Edited by Andrew Ungberg
June 26, 2008
The Internet Corporation for Assigned Names and Numbers (“ICANN”), the international organization in charge of allocating resources and establishing protocols on the Internet, last week removed the existing limits on internet generic top-level domains (“gTLD”s) and announced plans to accept applications from operators for new namespaces. Initially, the earliest domain names fell into a few select functionally classified categories, such as .com and .net; subsequent rounds of expansion added new categories such as .biz and .post. Now, however, ICANN will permit private operators to create and vend top-level domains of their own design.
According to ICANN's Final Report on Introduction of New Top-Level Generic Domains, new gTLDs will continue to be approved by ICANN itself. It is as yet unclear whether registrars who are approved to distribute domain names using new gTLDs will not be required to follow the same Unified Domain Name Dispute Resolution Procedure (“UDRP”) that registrars who handle .com, .net, .org, .biz, .info, and .name are currently required to follow. ICANN itself, however, will follow an entirely new set of procedures. Approval of a new gTLD will take into consideration the string's similarities to existing gTLDs, how closely it resembles existing trademarks, and whether it fits within existing international standards of “morality and public order,” among several other tests.
Names @ Work is already touting this as the next big trademark challenge for corporations concerned about maintaining their brand online, while Cyber Law Online is dismissing it as a minor shift with few real-world implications. Pangloss predicts that this will ultimately result in legitimate users dispersing across the newly broadened namespace, making it easier to identify determined trademark-infringing cybersquatters, although others are less optimistic.
Last year, IP Justice looked at the draft standard and worried that the censorship policies of nations whose concept of public order is more restrictive would eventually make the availability of new gTLDs subject to a least-common-denominator test of international acceptability.
Among technologists, the Slashdot community offers its own reaction here. Various international technology publications offer mostly cautious optimism about the success of the expansion, tempered by either concern that the average internet user may become confused or pleasure at what they assert is long-overdue modernization in the system combined with cynicism about the legal windfall for trademark attorneys.
This change signals a reconsolidation of regulatory power over Internet names in the hands of ICANN. For years, Network Solutions, Inc. had an exclusive contract to register Internet domain names with InterNIC, the original Internet governing body chartered by the US government. When InterNIC handed off authority to ICANN, they initially moved toward a freer market, opening up the distribution of domain names to multiple registrars. However, this new initiative places the power to approve or disapprove of any string in the hands of ICANN. To the extent that it can convince companies, private actors, and organizations to move from original TLDs such as http://www.walmart.com to new ones like http://walmart, ICANN will become the arbiter of acceptable naming on the Internet.
Some international interests may well be better served by this regime. For example, ICANN expects this expansion to lay the groundwork for URLs in languages which do not use Roman characters. However, given the number of ways in which trademarked terms can be truncated, transliterated, or otherwise altered within this newly broadened namespace, legal practitioners concerned about costly domain name dispute resolution should be wary of the power that ICANN has arrogated to itself.
Background on domain name dispute resolution, available at Legal Cyber Law.
Volume 21 of the Harvard Journal of Law & Technology features an article by Jacqueline Lipton on an alternative approach to international trademark conflict resolution.