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What on earth does that mean?

Companies, organisations, groups and even cities will be applying to run their own domain name extension (new gTLDs).

What new domain name extensions are we going to see?

At the moment nobody knows for sure. A number of organisations have been very open about their plans to apply for particular strings, so we know there are applicants for:

.shop (multiple applicants)
.web (multiple applicants)
.nyc (multiple applicants?)
.paris
.scot
.irish
.london
.music (multiple applicants)
.wine
.canon

And many more besides, but nobody knows at the moment who will actually get to launch a new domain extension.

Why not?

ICANN's launch program includes an application process that vets applications very carefully, so some applications will probably fail. Others might get past the initial stages of the application process but fail for another reason.

Can I apply to run my own domain extension?

Short answer: Yes, but it's going to cost you around $1 million US and you'll need to be a limited company or equivalent.

Longer answer: Getting your own domain extension is not the same as simply registering a domain via a registrar. With your own domain name extension you would have a lot of freedom, but you also have a lot of responsibility as well. While it might be suited to an organisation, group, city or big company, it probably isn't something that most individuals would consider doing, unless they were multi-millionaires :)

Does my brand need to apply for our own TLD? We're worried that someone will "squat" it.

No. The newgTLD program has a lot of trademark and IP protection mechanisms built-in, so you can object to an application before it is fully processed

When will we know which extensions have been applied for?

Early in May 2012 ICANN will be publishing the full list of applications

What happens if more than one entity applies for the same string?

They could end up in an auction.

Can there be shorter domain extensions with this expansion?

The minimum is 3 characters. All the two characters are reserved for country codes. The same rule applies to internationalised domain names.

So could I have email@extension?

No. You still need a domain/string before the extension e.g. michele@neylon.nyc would be valid, but michele@nyc wouldn't be. The extension (TLD) is the bit on the right of the dot — you still need to specify something on the left.

When will I be able to register a .irish or .shop domain?

When the registry operator has been chosen and registrars (such as ourselves) begin offering the new extension(s) for sale. This is unlikely to happen until 2013 at the earliest.

We will post more on the subject as the facts become known.

Can I pre-register a .irish or a .shop domain now?

No and we would strongly discourage anyone from even trying to pre-register domains now.

Will I need to register my company name or trademark in all these new domain extensions?

No. There are going to be a much larger number of domain extensions that will probably cater for specific industries, professions, languages and locations. There wouldn't be much point in registering your brand or company name in all of them.

So which domains should we register?

If you sell wine and there is a .wine, then that would be an obvious choice. Got an office in New York City? Then .nyc would make a lot of sense.

In short you should see these new extensions as being a marketing opportunity.

How much will it cost to register my own domain with these new extensions? i.e. mycompany.shop or mybusiness.paris

Pricing will be determined by each registry operator, so some extensions might be available (retail) for not much more than a .com domain name now, while other domains will probably be sold as "premium" extensions.

Will these new domain extensions replace existing .com or .co.uk domain names?

No. This is an expansion. It is not a replacement.

If you have any other questions/queries, or if something is unclear please let me know via the comment form below.

Written by Michele Neylon, MD of Blacknight Solutions

Although the trademark laws have served the business community very well during the last century, now with the advent of ICANN gTLD platform, it appears that it will provide an additional layer of speedy protection and increase the name identity visibility resulting in market domination via name identity.

Here are the key issues:

Global domain name management is under one universal set of rules, as managed by ICANN. The logical expansion to gTLD would enable players to acquire one master gTLD root, enjoy the benefit of its instant visibility around the globe, and not have to worry about fragmented policies and name variations normally adopted to fit the trademark rules of local countries.

In the real world, it would be an impossible task for all global trademark bodies to adopt a single universal trademark platform for proposed name clearance.

The current landscape of trademark laws resembles a complex jigsaw puzzle. Countries are arranged, piece by piece across the global surface, and conflicts between trademark laws are likely to arise. Trademark laws traditionally vary country by country, and as a result, makes regional or regional filing a prolonged, expensive and litigious process.

ICANN gTLD, on the other hand, resembles a single canvas stretchable across the globe.

ICANN has taken a bold approach insofar as cyber branding is concerned to offer a solution which would prove to make the rise of a brand name in the fastest time at a minimal cost with the maximum impact. It is the simplicity of the concept that cascades into its intricacy. It is the absence of such key issues in all the mythical fearmongering that has circulated for the last six months in the advertising and branding trade associations of the world.

Is the trademark profession under threat by this new aspect of universal thinking? This new platform eliminates bureaucracy, inefficiency and the lingering costs of stretching trademark coverage. Is it possible that current brandholders that are entangled in regional expansion and fearful of single body clearance.

The fact is that the majority of current brandholders are lost in a jigsaw puzzle where some pieces fit while most don't. Any attempt to seek out a comprehensive global solution simply doesn't appear to be possible. This scenario imposes serious questions to be addressed by the boardroom. What would the corporation do, change or not change? This is where the biggest level of fearmongering resides.

The monster change that gTLD brings to the table is its capability to centralize a domain name by creating touchpoints at the granular level without compromising its name identity. This level of master name integrity is nonexistent with today's tools in the open-for-all domain space. Names were always modified and appended with slashes, dashes and other components so that they would be workable in local jurisdictions.

With gTLD, for example, dot sony would remain .sony even when operating millions of subdomain names across 200 countries. They will all end up at .sony. It's very unfortunate that the ensemble of the wisemen from the upper echelon of the advertising and marketing elite have failed to recognize that the old $10 dotcom space has no play in this million dollar sophisticated highly regulated name acquisition process. The curtain of 'single domain name universality' rises January 12.

Written by Naseem Javed, Corporate Image & Global Naming Expert

That's all I can really say.

Who would have ever believed that .XXX would finally be approved AND launched, total domains registrations would continue to grow at 10% year over year, ICANN would be in the process of preparing for the launch of new gTLDs in the face of harsh criticism, and that both Go Daddy and Group NBT would be acquired by private equity firms.

As we look back over the past year, here are the top 10 biggest domain stories of 2011:

10 – To Mark Cyber-Monday, US Government Continues Practice of Domain Seizures

On November 28, U.S. Immigration and Customs Enforcement's (ICE), Homeland Security Investigations (HSI), the National Intellectual Property Rights Coordination Center (IPR Center), the Department of Justice and the FBI Washington Field Office seized 150 domain names that were illegally selling and distributing counterfeit merchandise. The 150 seized domains are in the custody of the federal government. Visitors to these websites will now find a seizure banner that notifies them that the domain name has been seized by federal authorities and educates them that willful copyright infringement is a federal crime.

9 – Total Number of Worldwide Registrations Reach 220 Million

With a base of close to 220 million registrations worldwide, 2011 saw close to 10% increase in total registrations over 2010 as reported by Verisign.

8 – Secondary Domain Market Remains Strong

Even with the launch of hundreds of new extensions expected in 2013, the secondary market for domain names remained healthy. Top reported domain sales in 2011 included Social.com for $2.6 million, DomainName.com for $1 million and Aktien.de (Stocks in German) for $725,000.

7 – ICANN CEO Leaves ICANN after Single Term

After just one 3-year term, ICANN CEO Rod Beckstrom announced that he will be leaving the agency in July 2012. According to his list of accomplishments, Beckstrom helped coordinate system of unique identifiers and global, interoperable Internet, with excellence; executed on every single major ICANN strategic initiative (100%); and helped evolve ICANN into a world-class institution.

6 – An Unprecedented Number of Registrar Acquisitions Occur

On July 1, Go Daddy announced that it agreed to be bought by private-equity firms KKR & Co., Silver Lake Partners and Technology Crossover Ventures for $2.25 billion. Then in August, Web.com announced their acquisition of Network Solutions for $560 million in cash and stock. Finally, on November 25, it was announced that Group NBT (parent of NetNames, Ascio, Speednames, Envisional, Easily.co.uk and Indom) was acquired by HG Capital for $236 million.

5 – ccTLD Registries Make Efforts to Improve Online Security

As predicted in 2010, a number of ccTLD Registries (including .AF, .CX, .GS, .GY, .KI, .NF, .NL, .PR and .TL.) adopted Registry Locking programs in 2011. Previously, only .COM, .NET and .BIZ had offered Registry Locking programs. A domain that is set to a Registry Lock status cannot be updated using automated commands and an offline security protocol must be completed before the domain can be modified in any way. Registry Locked domains are impervious to hijackings, erroneous name server updates and social engineering attacks.

4 – SOPA (Stop Online Piracy Act) Faces Strong Opposition

The bill would allow the U.S. Department of Justice, as well as copyright holders, to seek court orders against websites accused of enabling or facilitating copyright infringement. Proponents of the bill which include media conglomerates and pharmaceutical companies claim that it protects intellectual property, while opponents which include some of the world's largest Internet properties, coalitions of law professors, and groups of engineers claim that it threatens First Amendment rights and could cripple the Internet. Go Daddy, initially an proponent of the bill, quickly changed their tune when backlash to their support became apparent.

3 – Registrar Security Breaches Abound

In 2011, a number of domain registrars suffered breaches and outages resulting in redirected websites, possible malware infections, non-responsive websites and compromised usernames.

The first attack occurred on September 4 when hackers were able to update nameservers for domains managed by NetNames, a corporate-focused, UK-based registrar. High-profile domains were redirected to a page that stated, "4 Sept. We Turkguvenligi declare this day as World Hackers Day — Have fun ;) h4ck y0u."

Not ten days later on September 14, hundreds of websites hosted by Go Daddy were compromised when logins and passwords were used to access accounts. Visitors to affected sites (originating from search engines) were redirected to a site that attempted to download malware to their respective computers.

At the end of September, NetRegistry, an Australian-based registrar, suffered a DDoS (Distributed Denial of Service) attack. Customers using NetRegistry's web-hosting services reported intermittent access to their websites.

Finally, on December 23 as part of an ICANN requirement, Melbourne IT erroneously sent WDRP (Whois Data Reminder Policy) notices to the wrong accounts resulting in thousands of breached usernames. Melbourne IT stated that no passwords were sent, and that access to an account could only be gained with both the username and password.

2 – .XXX Is Approved and Launched

After years of back and forth, the ICM Registry finally received approval from ICANN to operate .XXX. On September 7, the ICM Registry began accepting Sunrise Registrations which offered trademark owners the ability to purchase a block of the trademarked string for a period of 10 years. The ICM Registry has made concerted efforts to protect the rights of brand owners in other ways too. The .XXX zone file currently contains ~106,000 registrations.

1 – Despite Harsh Criticism ICANN Remains Committed to Launching New gTLD Program

ICANN's new gTLD Program will open up the top level of the Internet's namespace (to the right of the "dot") to purportedly "foster diversity, encourage competition, and enhance the utility of the DNS." Currently there are only 22 gTLDs (.com, .net, .org) and 250+ ccTLDs (.fr, .de, .cn).

Despite the benefits espoused by ICANN, the Program has received harsh criticism from the Association of National Advertisers (ANA), the Direct Marketing Association (DMA) the Interactive Advertising Bureau (IAB) and the Coalition for Responsible Internet Domain Oversight (CRIDO). The FTC also expressed their concerns to ICANN regarding the new gTLD program.

Both the US House and Senate also held hearings in 2011 on the topic of new gTLDs.

Regardless of the recent criticisms, ICANN is moving full steam ahead with the new gTLD Program. Applications for new gTLDs will be accepted from January 12, 2012 to April 12, 2012. Experts believe that there will likely be hundreds of applications for new gTLDs submitted during this first round.

So What Will 2012 Bring?

I believe that ICANN will open the new gTLD application period without any glitches, and that many will be surprised at the actual number of applications submitted. However, as new gTLD registries will not become operable until 2013, the real heartburn for brand owners will not be felt until next year.

Also, I am sure that we will continue to see security breaches at both the Registry and Registrar levels and that the sophistication of these attacks will continue to increase.

But whatever the new year brings, I'm certain that it won't be business as usual. In the domain industry — it never is.

Written by Elisa Cooper, Director of Product Marketing at MarkMonitor

For quite some time now, ICANN has been subjected to a huge amount of pressure by IOC and the Red Cross to protect their names in the new gTLD program. This request, which was also vehemently supported by ICANN's Governmental Advisory Committee (GAC), was meant to ensure that all the names associated with these two organizations (OLYMPIC, OLYMPIAD, RED CROSS, RED CRESCENT, etc.) are reserved under both the top level and second level domain names. As it normally goes, the justification is that these organizations constitute targets of cybersquatting activities, their non-profit nature (a point which is questionable given their involvement in multi-billion dollar licensing deals) does not allow them to spend money defending their brands as other purely commercial entities do and, in any case, such organizations should receive special treatment especially since Treaties and international commitments provide them with presumed privileges that could justify such levels of protection. Seeking a solution to this issue and given the pressure inflicted upon it, the ICANN Board agreed to initiate a process between the GNSO and the GAC on finding ways to address this issue; in the meantime, IOC's and the Red Cross's requests were accommodated — at least partially, as ICANN has committed to reserve their names in the new gTLD space but only for the top level domain names, stating, "the extraordinary step of blocking the requested names at the second level should not be taken as it would deny those with a legitimate interest or rights in registering those names at the second level, e.g., olympic.taxis and redcross.salt."

I still think that this compromise is problematic and it is not because I don't believe in the mission of these organizations or what they stand for. My problem is that these organizations are misusing trademark law and international Treaties to receive unprecedented levels of protection, especially when their names (in the case of 'Olympic' at least) conflict with other recognized rights, associated with traditional knowledge as well as cultural and geographical identifications. But, ultimately, it is the very dangerous precedent that such policy compensations set.

A recent letter [PDF] from a number of Intergovernmental Organizations "on the Expansion of Generic Top Level Domains" to ICANN is a case in point. Based on the justifications used by the Red Cross and the IOC, several intergovernmental organizations are requesting ICANN to afford them the same privileges as these two organizations. So, if with IOC and the Red Cross we were stuck between a rock and a hard place, now we are in real trouble. The problem is simple — the argument that all these organizations should be afforded special protection, despite the very valuable work they are doing, is weak and flawed. In the letter, the organizations state that measures to protect their names can "find support in international legal norms", citing Article 6ter of the Paris Convention for the Protection of Industrial Property, Article 16 of the Trademark Law Treaty and Article 2 of the WTO Agreement on Trademark Related Aspects of Intellectual Property Rights.

It is indeed the case that all these statutes mainly reflect the need for the protection of these organizations; but they are equally being referenced quite widely. In particular, Article 6ter, para. 1(a) states: (a) The countries of the Union agree to refuse or to invalidate the registration, and to prohibit by appropriate measures the use, without authorization by the competent authorities, either as trademarks or as elements of trademarks [emphasis added], of armorial bearings, flags, and other State emblems, of the countries of the Union, official signs and hallmarks indicating control and warranty adopted by them, and any imitation from a heraldic point of view. And, para. 1(c) states: "The countries of the Union shall not be required to apply the said provisions when the use or registration referred to in subparagraph (a), above, is not of such a nature as to suggest to the public that a connection exists between the organization concerned and the armorial bearings, flags, emblems, abbreviations, and names, or if such use or registration is probably not of such a nature as to mislead the public as to the existence of a connection between the user and the organization [emphasis added]." So, here we have provisions that commit to protect the names, abbreviations, flags, etc. of such organizations, but only in relation to trademarks. Neither of these statutes seeks to create or is willing to acknowledge special privileges like the ones being requested from ICANN.

But, the bigger picture here is the position that such pressures place ICANN. ICANN is not a trademark entity and was not created to confirm, amend or re-write trademark law. And, this is essentially what is being asked from ICANN — to interpret old Treaties into the realm of the Internet and, to do so, in a fashion that is not compatible with its governance structure. This is problematic.

It really took ICANN a lot of time to become a body that was not purely seen as a front for trademarks and their protection. The history of the organization is replete with examples of how the trademark lobby has used ICANN as the platform for many expansive policies. But, lately things have changed. For instance, the fact that ICANN resisted the adoption of the Globally Protected Marks List (GPML) is a credit to the organization, since its adoption would place ICANN as the new legislator of trademark law. The fact that such listed never existed and was requested by ICANN to do so is a clear indication of why ICANN should resist meddling with trademarks.

The current requests by all these organizations are not that far away from the GPML idea; they may not be asking ICANN to create something new or novel, but they are asking ICANN to interpret international law instruments and translate them into DNS language. This is not ICANN's job and ICANN should refrain from engaging in such dialectic. Imagine, for instance, if the World Health Organization were to reserve its abbreviation 'WHO'. With many existing entities making legitimate use of the word 'WHO', it would be contrary to existing trademark law for only one entity to use it. (Examples include the music band 'The WHO', 'Doctor Who', the biographical encyclopaedia 'Who's Who', etc.). If ICANN complies with this request and continues to grant these privileges, it exposes itself to all sorts of problems. It is time we reconsider the way trademarks fit within the domain name space.

Written by Konstantinos Komaitis, Senior Lecturer

"The program of the Internet Corporation for Assigned Names and Numbers (ICANN) to open the Internet to new top-level domain names (TLDs) has been anything but rushed. It took more than six years of thoughtful discussion, debate and study involving governments and intellectual property experts from around the globe. About 60 technical papers and independent reports, plus analysis of 2,400 comments, informed seven versions of carefully crafted rules that will govern the award of a new TLD."

The letter full can be read here.

Other sources: (UPDATED Dec 20, 2011 11:24 AM PST)
Did Beckstrom even read the Washington Post editorial? .Nxt, Dec.20.2011

Kurt was ICANN's spokesperson in both hearings, and felt that the first was more favourable to ICANN than the second. When I asked him if he thought the launch of the new gTLD program might be delayed as a result of these hearings, his response was a cryptic: "the risk is greater than zero”.

Although there are calls for a delay to the program, it was fiercely defended by both Pritz and some American politicians who want to see ICANN's unique model of non state-centric governance succeed. "The New gTD Program demonstrates the strength of the bottom-up, multi-stakeholder process,” Pritz said in his testimony to the US House of Representatives' Subcommittee on Communications and Technology. "The New gTLD Program under discussion today is the implementation of an ICANN-community policy recommendation to achieve one of ICANN's foundational mandates.”

The prevalent feeling is that any serious blow to the new gTLD program now be a direct attack on a governance model that tries to be as inclusive as possible. Several nations, including the US, don't want that. Because they don't want to see the Internet absorbed into United Nations control and hence be put at the mercy of countries where individual and collective freedoms are not the priority.

So if the recent hearings don't seem to have capsized the new gTLD ship just yet, the seas remain choppy. That fact is made all the more obvious by a letter co-signed by 28 major international organisations, including the UN, NATO, WIPO and the WTO, asking to be given the same level of protection under the new gTLD program as was recently granted to the Olympic Committee (IOC) and the Red Cross (RC).

You can almost hear the "I told you so"s from ICANN community members like the GNSO's Non Commercial Users Constituency (the NCUC), who have been saying all along that giving the IOC and the RC what they want was a triumph of big trademarks of individual users.

Those arguments were ignored, but doing the same with this letter, sent to ICANN CEO Rod Beckstrom, ICANN Chair Steve Crocker and Kurt Pritz, is going to be difficult. The GNSO is already working hard to refine the new gTLD policy to allow the IOC and RC requests to be implemented. With the new gTLD launch window set to open in just a few days (January 12, 2012), there is simply no time to include other organisations in this work. Let alone 28 of the world's most convoluted (in terms of the rights they would like to see protected) such groups.

For now, the goal post for the new gTLDs remains firmly set at the January 12 launch date. But there are some pretty stiff ill winds blowing around it…

Written by Stéphane Van Gelder, General manager of INDOM

Ducklin wrote: "We recently surveyed a batch of lost USB keys bought from a transit authority's Lost Property auction; we hoped that the infection rate would be about 10%, but found that 66% of the keys in our study were infected. So we naively assumed that typosquat sites would be similarly incautious (either by accident or design) about malware. But out of 14,495 URLs downloaded in browsing to the 1502 sites on our list, only one contained malware. That's just 0.01% by URL, and 0.07% by fully-qualified domain name."

In his report, Ducklin analyses the data revealing unexpected results and harmful aspects of the typosquatting ecosystem.

Kurt Pritz, ICANN's senior VP, a witness at today's hearing, showed no indication of ICANN's willingness to delay the launch and recently wrote this in a blog post: "A long and careful deliberative process produced this program. World-class experts on intellectual property, economics and Internet security developed solutions and those solutions were reviewed by the Internet community and vetted by governments."

Information about today's hearing can be found here.

Other sources: (UPDATED Dec 22, 2011 1:30 AM PST)
ICANN Defiant Despite Calls to Delay Domain-Name Program NationalJournal, Dec.15.2011
ANA Applauds Strong Letter from FTC to ICANN Citing Major Concerns About Top-level Domain Expansion Program ANA, Dec.19.2011
FTC tells global Internet body to cut back domain name plan Nextgov, Dec.19.2011
Critics stage last-ditch effort to derail domain name expansion plan Computerworld, Dec.20.2011
New gTLD industry pleads with senators DomainIncite, Dec.22.2011

It was clear from the start that virtually all these high-powered executives knew about the program they had learned from the eleventh hour negative campaign. Many thought the program had little or no value for brands and businesses and feared having to apply defensively for their names.

There is confusion on the most basic facts. The arguments of the opponents of the new gTLD program are founded on the inaccurate presumption that gTLDs and second level domains are interchangeable and hence, to be evaluated in much the same way. This has led many senior marketing and brand executives, to conflate gTLDs and second-level domain names. One senior vice president of a large multi-national consumer package goods company said, "We have hundreds of brands. The cost for us to apply for each of these as a TLD to defend them would be huge."

Why would she believe she had to apply for every brand as a gTLD?

If you listen to the testimony from the ANA's Dan Jaffe, he estimates the cost to brands as "multi-billions of dollars," and then justifies how the ANA has arrived at this figure. He says, "Some have estimated that for a typical company the cost of acquiring a single new gTLD and managing it could easily exceed 2 million dollars. Companies that are forced into an auction with another potential applicant could face far higher costs. As companies have hundreds and even thousands of brands to defend, it's easy to see how these costs can spiral upward." Is he talking about gTLDs or second level domain names?

By the end of the seminar with major brands and their ad agency — and after correcting misrepresentations and discussing innovative marketing opportunities possible for some brands with new gTLDs — reactions were much different. Many found that they needed to see gTLDs as a competitive and strategic opportunity, not simply a defensive and tactical maneuver. We talked about involving other functions within their organizations to make a proper decision. For some, it was clear that they need not apply for gTLDs. Others began considering a generic term describing their vertical industry or market.

My morning in New York reaffirmed the notion that our entire DNS industry is faced with a massive communication problem that we must do a better job of addressing.

While it is fair to discuss the potential benefits of new gTLDs, we need to first address the misinformation and criticisms.

First, there are the trademark infringement concerns. There are comprehensive and collectively unprecedented protections afforded legitimate trademark holders in the new gTLD program. For example, once the applicants are announced and before ICANN even evaluates applications, there are opportunities for trademark holders to object. Specifically, trademark holders can use the Legal Rights Objection, using the WIPO Rules that are part of a larger dispute process laid out in module 3 of the Application Guidebook. Companies and associations can raise objections for both registered and unregistered trademarks upon which they believe the new gTLD application may infringe. So, for example, if an entity other than eBay applies for .eBay, it would likely be a costly exercise in futility.

As for generic strings, they are just that, generic, so no entity has trademark rights. If a company or brand chooses to apply for a generic string, it may be to defend their competitive business interests, but it is not to defend their trademark interests.

If on the other hand, the company or brand decides against applying for a generic string and finds later that another entity has applied, been evaluated and been awarded the same string, they still have options. They can choose whether to register second level domains, should be it applicable to their business. In that case, they are afforded protections such as mandatory sunrise provisions giving trademark and brand holders the first rights to apply for a domain name under a new gTLD. Should they choose not to register their second level names, additional and new mechanisms, such as the Centralized Trademark Clearinghouse, makes the task of guarding against potential violations much easier. The Centralized Trademark Clearinghouse provides them a mechanism to register their trademarks only once in a centralized database for all registries to reference as a source for validating applications. Should an potential infringement occur, they have quick and efficient recourse through the Uniform Rapid Suspension System and the Trademark Post Delegation Dispute Procedure. Bottom-line: It will be more difficult and costly than ever before for cybersquatters to attempt to register legitimate trademarks. That said, ICANN would need to ensure that this fear among trademark owners is unfounded.

A related issue is the cost of defensive domain name registrations to protect against cybersquatting. Unless the program is launched and the impact on defensive registrations studied, we will not know the exact cost. But if prior behavior is an indication, companies do not make a habit of registering their names in every conceivable TLD. A 2009 study showed that among the seven most common current gTLDs, less than 200,000 names were registered across all the TLDs — but only three percent were registered by the same entity, or about 6,000. Again these numbers are based on the current state and current gTLDs, many of which were launched without the comprehensive protections now afforded trademark and brands in the new gTLD program. Also, in extreme cases, the new ICANN rules facilitate trademark holders going directly after registries that sell names that infringe or have the potential to create confusion.

Last but not least, let's examine the claim of user confusion resulting from an "unlimited" number of new gTLDs deluging the market. This assertion is based on two assumptions: one, that unlimited number of gTLDs would be awarded, delegated and launched at the same time; and two, that many would be confusingly similar to one another. As for the first, ICANN has made a commitment to the root servers, operators and others in the security and stability community that the maximum number of gTLDs delegated in a year would be no more than 1,000. ICANN's new gTLD Application Guidebook has clear provisions for string confusion and string contention. So ICANN could not and would not award .shop and .shops.

Ironically, by their own misunderstanding, the opponents are spreading the confusion wider instead of curbing it.

It is our job as an industry to clear the smog of misinformation for the benefit of businesses, brands and consumers.

Written by Alexa Raad, CEO of Architelos

What was heard at the Hearing was not something inspiringly new: brands will suffer and consumers will be confused. A lot was said about defensive registrations, how the Internet is a scary place for trademark and brand owners, how there is a possibility that child porn will proliferate, how cybersquatters can 'blow us up', how law enforcement will not be able to do their jobs and how US senators may not be able to register their names. Innovation was questioned in a much unconvincing way and much was argued about the presumed lack of consensus for the new gTLD program.

The new twist in this Hearing was the participation of non-profits, through the YMCA, which was used by the trademark community as the new vehicle to air trademark concerns and as a further attempt to demonstrate that if these organizations' brands are suffering, then this should be enough to put the new gTLD program on hold. This might have impressed the Senators at the Hearing but it, ultimately, is a really weak argument. Non-profits are not trademark maximalists, especially in the way trademark interests are represented at the ICANN level. Non-profits are entities that protect their marks (not brands), but following the underpinning principles of goodwill, consumer protection, competition, etc. associated with the mark and the services they provide. So, I am not sure whether the YMCA's testimony represents an understanding for NGOs and non-profits outside the US; in fact I am pretty sure it doesn't represent the views of many NGOs and non-profits in Europe and, especially, in the developing world.

On the other hand, ANA's message was simple: the new program is a threat to companies and consumers and it should be stopped. ANA has been particularly involved in this process after the Special Trademark Issues (STI) team recommendations were released, which were based on a consensus that the trademark community did not agree with. This consensus was highly challenged by ANA, on the basis that, since it didn't reflect the views of the trademark industry and some non-profits, it was illegitimate. No matter what one thinks about ICANN's consensus policies, these have been in place for many years, a lot of work to more accurately define it has been done and continues at the level of the the Generic Names Supporting Organization (GNSO), they are part of ICANN's ecosystem of procedures and, in many cases, have been instrumental in the trademark community winning many policy battles. So, the idea that this consensus is not working is mistaken: it just didn't work out this time for the trademark crowd.

I was quite puzzled with Esther Dyson's testimony, especially the part where she argued that "the process of consulting with the public hasn't really worked" and that she was representing Internet users, who will be confused through this expansion. There are two mistakes Ms. Dyson made: through NCUC for example, users have participated in the process and, for instance, concerns of free speech and freedom of [removed]that no one at the meeting even dared to mention) have been addressed to the fullest extent possible within a multistakeholder model. (The difference is that, contrary to other groups, these groups have accepted the results of such multistakeholder recommendations.) And, as for the argument that users will be confused through this process is really not working any more. Users have become more savvy than any other time; by now the majority knows how to use the Internet, what to suspect and what to avoid. The idea that we need stronger intellectual property protection for the users reflects a time when our parents and grandparents were not logging on to Facebook and they thought computers were aliens.

So, what one should take from this Hearing is that the people who actually have been involved in this process, Ms. Fiona Alexander from INTA and Mr. Kurt Pritz from ICANN, both celebrated and gave their vote of confidence to multistakeholder participation. They both correctly insisted on the fact that the new gTLD program was a consensus policy and that its language is an attempt to represent the multistakeholder environment of ICANN. They addressed how all stakeholders participated in the various policy groups and that, although work needs to be done, a lot has happened towards ensuring that ICANN's work on the new gTLD program reflects its multistakeholder community in a transparent and accountable way. This is a very crucial point and Hearings like this one demonstrate how foreign multistakeholderism is for many US politicians. So, here's a suggestion: if we wish to have Hearings like this one, let's do so, at least with an understanding of how ICANN works, where we were and where we are now. Because it turns out that Hearings like the one of December 8, are not constructive at all; they are highly disruptive, in a time when ICANN should be focusing on finalizing and cross-checking everything in order to make sure that the January 2012 launch goes as smoothly as possible.

Written by Konstantinos Komaitis, Senior Lecturer

In his remarks, Chairman John D. Rockefeller, U.S. Senate Committee on Commerce, Science, and Transportation, said:

"Starting in January, the Internet Corporation for Assigned Names and Numbers, commonly referred to as ICANN, is planning to allow organizations and companies to apply for any generic or brand-specific top level domain name they wish. This means that hundreds — if not thousands — of new names are going to join the familiar world of "dot com," "dot net," and "dot org." Get used to "dot hotels" or "dot auto" or "dot movie," a surge of new names and addresses that create opportunities but could also create a lot of confusion. If ICANN is determined to move forward, it should do so slowly and cautiously."

Below are quotations from witness panel testimonies:

"The ICANN community has worked tirelessly to create a New gTLD Program that will introduce competition and innovation at the top level of the DNS. Thousands of pages have been carefully written, balancing expert analyses, independent study, and thousands of comments. Governments have provided advice; professionals have weighed in. The new gTLD implementation program represents opportunities for innovation and enhanced competition, with a future of stronger rights protections, stronger consumer protections, and measured paths forward to future rounds."

— Mr. Kurt Pritz, Senior Vice President of ICANN

* * *

"NTIA is dedicated to maintaining an open, global Internet that remains a valuable tool for economic grown, innovation, and the free flow of information, goods, and services online. We believe the best way to achieve this goal is to continue to actively support and participate in multi-stakeholder Internet governance processes such as ICANN. This is in stark contrast to some countries that are actively seeking to move Internet policy to the United Nations. If we are to combat the proposals put forward by others we need to ensure that our multi-stakeholder institutions have provided a meaningful role for governments as stakeholders. NTIA believes that the strength of the multi-stakeholder approach to Internet policy-making is that it allows for speed, flexibility, and decentralized problem-solving and stands in stark contrast to a more traditional, top-down regulatory model characterized by rigid processes, political capture by incumbents, and in so many cases, impasse or stalemate."

— Ms. Fiona Alexander, Associate Administrator, Office of International Affairs, National Telecommunications and Information Administration, U.S. Department of Commerce

* * *

"We reject the argument of those who say that it is too late for ICANN to step back and reevaluate or for NTIA, the Governmental Advisory Committee and other key Internet participants to try to make one last major effort to forestall this potentially severely damaging initiative. There is absolutely nothing sacred about the January 2012 implementation date. Given the serious concerns expressed by a broad and growing cross-section of the entire American and global business community, the companies which provide the economic foundation of the Internet, and the potential dangers to consumers, we believe it would be irresponsible for ICANN to proceed full-speed ahead with the roll-out next month."

— Mr. Dan Jaffe, Executive Vice President, Government Relations, Association of National Advertisers, Coalition for Responsible Internet Domain Oversight

* * *

"The current domain name system in some ways is an accident of history. ICANN was created to regulate it, independently of any government and on behalf of the Internet — and world-community as a whole. Just as with fishing rights, communications spectra, taxi medallions and other «commons,» there's a delicate balance between too few and too many domain names, which this new initiative may well upset if it goes forward without more serious study. As the old saying goes: If it ain't broke, don't fix it!"

— Ms. Esther Dyson, Founding chairman of ICANN, 1998-2000; currently an independent angel investor

* * *

"I know that in Health Care Reform you heard the concerns of small not-for-profits and provided the same "claw back" for health insurance premiums for small not-for-profits as you have for small business. Time and again this committee has shown interest and common sense in protecting our precious not-for-profit sector from tremendous financial burden that will inhibit our ability to achieve our missions. I ask each of you to think about all the small and large not-for-profits that make our country and our world a better place to call home; our work alongside government; our work on most, if not all, of our nation's greatest problems. I ask you to look at this issue through the lens of the not-for-profit organizations in this country who are using limited resources to do much good."

— Ms. Angela F. Williams, Senior Vice President and General Counsel, Young Men's Christian Association of the United States of America

Several proposals for such new legislation currently before the U.S. Congress have generated quite a bit of controversy. Significant concerns have been raised, including the risks of technological collateral damage; expansion of certain parties' legal rights at the expense of due process and other social norms; and a negative impact of these measures on international relations. As the rhetoric becomes more polarized, a satisfactory public policy outcome appears that much harder to achieve.

Public Interest Registry acknowledges that online infringement and piracy are real issues and concerns for a variety of U.S. and international interests. We also understand the calls for additional efforts to confront these challenges, and we accept that new legislation may be necessary. Nevertheless, we share the concerns of many of the current proposals' critics. We believe that any legislative options should be narrowly focused to avoid unintended consequences that could seriously degrade the functioning of the domain name system (the "DNS").

Some proposals would require Internet service providers (ISPs) to filter attempts to view content under certain domain names so that Internet users would not be able to see the web sites represented by these domains. Filtering also is used by some nations to censor content that offends the government.

Public Interest Registry is already on record regarding our serious concerns about mandated DNS filtering and the collateral damage that this approach can cause. Such filters have potential consequences for a critical Internet security mechanism. Domain Name System Security Extensions, or DNSSEC, is a set of Internet security protocols that have been under development for approximately 20 years. The U.S. government has been publicly committed to use of DNSSEC since the publication of the President's National Strategy to Secure Cyberspace in 2003.

These protocols can ensure that an Internet user is being routed to a location that he or she intends to visit; they have the promise to be a critical tool in fighting phishing, DNS hacks, and other abusive behavior on the Internet. DNSSEC has only recently been implemented by generic top-level domains (gTLDs) such as .ORG, which was the first open gTLD to do so. Their adoption is critical in the battle against fraudulent and malicious practices on the Internet, and any action that might undermine public confidence in their effectiveness will damage their increasing adoption.

It also is difficult to assert a public interest in a broad expansion of certain parties' legal rights at the expense of the broader Internet-using community's rights. In particular, the current legislative proposals raise significant due process concerns. Provisions of pending legislation would eliminate or seriously limit advance notice to alleged offending sites and meaningful opportunities to respond to charges. These initiatives could threaten the universally recognized right of freedom of expression.

Speech, be it personal or commercial, deserves protection; removal of content from the Internet without due process is a threat to that protection. The history of law enforcement actions has shown that DNS filtering and other DNS-related solutions to online problems have the potential to remove innocent content from the Internet. It continues to be our strong belief that limits to the exercise of fundamental human rights must meet a rigorous standard; such limits should be the exception and not the rule. There must be respect for due process and the provisions enshrined in the Universal Declaration of Human Rights and related international law.

In addition, it is hard to reconcile a specific domestic initiative that appears to be at cross-purposes with long-standing international law enforcement principles, including the encouragement of multilateral cooperation. European jurists and parliamentarians recently have confirmed their commitment to preserve existing law concerning service provider liabilities and monitoring responsibilities for alleged online infringement. A unilateral U.S. mandate could undermine the spirit and practice of cooperation among international law enforcement bodies. A uniquely American approach might also have the unintended consequence of retaliation by other governments, including those that are more interested in censorship of content.

In sum, it seems clear that the proposed online property protection initiatives should not advance in their current form. These attempts at legislative solutions need to be reworked to reconcile the technical, jurisdictional, and international shortcomings that many have identified. To be sure, balancing the growing demand for more effective online property protections with the public interest of ensuring respect for fundamental human rights will remain a significant challenge for legislators, law enforcers, and policy analysts around the world. In our view, it would be unfortunate — even irresponsible — to see a set of special interest proposals undermine the open, decentralized, and global nature of the Internet that we enjoy today. 

Written by Paul Diaz, Director of Policy at Public Interest Registry (PIR)

This potential impact arises because, while domain names are subject to trademark law, the Anti-Cybersquatting Consumer Protection Act (ACPA) as well as ICANN's Uniform Domain Name Dispute Resolution Policy (UDRP) place the responsibility for domain name infringement upon the domain registrant and look at a variety of factors, particularly the actual use of the associated domain, before reaching a determination as to whether infringement exists.

ICA believes that SOPA, as introduced, creates the strong possibility that trademark rights holders will seek to have payment and ad services terminated to registrars and other domain name intermediaries based upon the allegation that they are facilitating the use of domains that constitute "counterfeit marks" in and of themselves, without reference to actual use or available defenses. This potential shifting of "cybersquatting" responsibility from registrants to registrars and other domain name intermediaries, as well as the failure to incorporate the more comprehensive and nuanced analysis of the ACPA and UDRP, appears unjustified and unwise — and could lead to the shutdown of these domain name intermediaries and the associated termination of critical domain-related services to millions of registrants engaged in non-infringing uses of their websites.

A key portion of the letter states:

ICA must oppose SOPA as introduced.

We therefore urge the Judiciary Committee to give careful attention to the potential impact of SOPA upon the domain name industry and to amend the legislation to clarify that the mere fact that an industry participant facilitates the de novo registration of a domain, or its renewal, transfer, or sale, or provides other domain-related services, cannot give rise to an allegation that it is involved with unlawful activities concerning goods or services bearing a "counterfeit mark".

The letter also expresses concerns that the introduced legislation needs substantial narrowing and is not required to effectively address infringement on websites subject to U.S. court jurisdiction, and will also have negative effects on cybersecurity and on the availability of venture capital for innovative Internet startups.

The full text of the letter is available at the ICA website.

Written by Philip S Corwin, Founding Principal, Virtualaw LLC; Counsel, Internet Commerce Association

Co-authored by JM Larsen, CMO, Sedari and Rita Tateel, President, The Celebrity Source

We read with interest the 20 Sept., 2011 article in The Hollywood Reporter. This confirmed that there is a lot of misinformation about the expansion of the domain name space circulating. Sadly, a creative opportunity is being seen as a threat by the most creative of industries.

The arrival of an open playing field for .ANYTHING is not a threat, it is unquestionably a long awaited opportunity and solution to the murky waters of the .COM namespace.

The opportunity is the restoration of trust and authenticity. Trust and reputations have been eroded by cybersquatting, phishing and fraud that are endemic to the current naming system.

Lady Gaga recently lost a legal battle to regain her LADYGAGA.ORG name. Countless other celebrities and brand holders have lost the rights to use their own name as a website, or found others free-riding on their reputation. If, as a brand holder, you didn't think through every possible version of your online name in the existing system, someone else will have done so… and for $5 become the proud owner of, say, LadyGagaNews.com just as if they were 'Born This Way' — even when they were not.

At what point does Lady Gaga put her foot down and demand ownership of her brand online… in its entirety? Until ICANN recently announced the opening up of the Top Level Domain (TLD) space, that option was simply not available. Now, if Lady Gaga applies for and is granted the rights to .GAGA she will own that space, permanently. Finally.

The film industry is concerned with the additional investment, protection and brand vigilance that will be required in the new Internet naming system. Would it not be attractive to the Entertainment industry if an appointed industry representative worked with stakeholders to find a policy system that allowed all new films to release and promote under the .MOVIE or .FILM namespace… if studios and production companies were guaranteed availability, confidentiality, reliability and extended securities? None of this is possible in the current .COM space. Plus no one would willingly act against the film industry for .MOVIE or .FILM, especially if it was under the umbrella of an organization like the Academy of Motion Picture Arts and Sciences and/or the Motion Picture Association of America — the legal defense budget alone would sink any competitors.

The choice is simple — more of the same misery of domain name by domain name fights, or a new world of opportunity for the Industry to command and control it's virtual properties. How it works would be up to the Industry; how it is liked and accessed by moviegoers is up to the Industry's imagination.

Celebrities (and their representatives) may question why it's necessary to buy their new TLD .name if it's already secured by rights of publicity and other trademark/license protections currently in place. However, like the Lady Gaga case, and countless examples of celebrity/studio merchandise fraud, the current .COM world proves this protection assumption to be false. Your name is not yours until you claim it.

Name/brand protection is only one aspect of how the new Top Level Domains (TLDs) are advantageous. For celebrities, as an example, there are at least three other major reasons to apply for and own your name/brand TLD: (1) create new business models for endorsements, advertising and product sales; (2) build out your brand through increased Search Engine Optimization — a valuable exposure vehicle for the non-profits, companies and products associated with and endorsed by the celebrity; and (3) strengthen and expand your fan base by creating virtual "villages" with many websites for shared interests, causes and increased fan connectivity. A sustained communications campaign can tell your fan base or brand customers where the real you can be found. Everything else with your name on line is either misrepresentation; or simply not you.

Hollywood brand owners and their representatives are strongly encouraged to take another look at the new TLD opportunity. It's something that the intellectual property community, charged with the protection of their client's brand equity, have fought for years to see realized. What it is definitely not, is a simple ploy to encourage brands to register thousands of new TLDs.

Ironically, the new TLD opportunity which is being criticized by some in advertising and entertainment law is the exact solution that they have been fighting towards for over a decade — complete and undisputed control over brands and intellectual properties they represent. Imagine if you had been able to influence the way .COM names were sold and to whom? With the new TLDs you can do just that.

This is the entertainment industry's moment. Do your homework, galvanize and get involved. But don't think about it too long. The TLD application process is complicated, and on April 12, 2012 the window of opportunity closes… possibly for several years.

Written by Jennie-Marie Larsen, Chief Marketing Officer at Sedari