Scintilla – a flash, a spark, an iota. Shorthand for creativity and an indicator of inventiveness under Australian law.






Friday, January 24, 2014

The (internet addressing) revolution is here

By Joel Barrett, Senior Associate

Would a ninja be blowing his cover by registering a domain name in the .NINJA space? Will .SEXY overtake .XXX as the gTLD of choice for the adult entertainment industry? Will Corn Station LLC, the registry operator of .EQUIPMENT, open domain name registrations to everybody in the equipment business or will we only ever see websites about corn threshers and maize shellers?

These are just three of the important questions we will need to face now that .NINJA, .SEXY and .EQUIPMENT, along with 104 other new gTLDs, have been introduced into the internet's root zone (or 'delegated', in fancy tech-speak). It has taken more than eight years of policy development, stakeholder consultation and rule drafting, but the New gTLD Program, so carefully nurtured by the Internet Corporation for Assigned Names and Numbers (ICANN) since December 2005, is finally starting to bear fruit.

The impact of the New gTLD Program on the way we use the internet, and the number of legal issues that could arise in relation to cyber-squatting and other online mischief, is likely to be substantial. For those who are unfamiliar with the New gTLD Program or internet addressing generally, gTLD stands for 'generic Top Level Domain' and refers to the extension in a web address that comes immediately after the domain name. For the last decade or so, there have been just over 20 available gTLDs, the most common ones being .COM, .NET and .ORG (although there are plenty of obscure ones you may never have seen, including .AERO for use by the air transport industry, .JOBS for employment-related websites and .CAT for websites about Catalan language and culture, not adorable cat memes).

Under the New gTLD Program, however, all 'established corporations, organisations or institutions in good standing' were invited by ICANN to apply for one or more new gTLDs to be added to the internet. ICANN received almost 2000 applications during the first round. There were few limitations on new gTLDs, and applications included brand names (.AMEX, .KINDLE, .NIKE), geographical regions (.AFRICA, .SYDNEY, .ALSACE), communities (.ISLAM, .SCOT, .GAY) and generic words (.FOOD, .NEWS, .STORE).

Applications in the first round closed on 12 April 2012 (there may be a second round in the distant future, but that will presumably depend on the success of the first round). On 23 October 2013, after many long months of stringently evaluating applications to ensure that the applicant has the operational, technical and financial capacity to operate a gTLD registry without compromising the security or stability of the domain name system, ICANN finally delegated the first new gTLDs. There are 107 so far, ranging from the generic (.SHOES, .PHOTOGRAPHY, .REPAIR) to the geographical and community-based (.BERLIN, .KIWI, .DEMOCRAT) to the slightly bizarre (.我爱你, which means 'I love you' in Chinese). Even a few Australian applicants have achieved delegation at this early stage (.MONASH, .CEO and .شبكة, which means 'network' in Arabic). In a matter of weeks, domain names should become available for registration in these gTLDs, and the number of delegated gTLDs will continue to grow as ICANN wades through the remaining applications. It is estimated that there could be around 1400 new gTLDs by the end of the first round.

While the questions at the start of this post might be vitally important from a philosophical point of view, the more pressing question from a legal perspective is whether such a dramatic expansion of the internet will only serve to aggravate the headaches that rights holders currently suffer in the online environment. At the moment, it is difficult for rights holders with established brands to monitor the internet for cyber-squatting, trade mark infringement, copyright infringement and misleading or deceptive conduct. The introduction of potentially hundreds of new gTLDs will provide many more opportunities for such bad faith conduct, and it is expected that the exercise of monitoring the internet will become that much more onerous.

Now that several new gTLDs are about to go live, we are one step closer to finding out just how challenging the New gTLD Program will be for rights holders and whether the suite of rights protection mechanisms promised by ICANN – the Trademark Claims and Sunrise services (to be supported by the Trademark Clearinghouse), the Uniform Rapid Suspension process and the Trademark Post-Delegation Dispute Resolution Procedure – will alleviate the pain.

In a second part to this post, we will explain those rights protection mechanisms in more detail.

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