The Tangled Web: A Case Against New gTLDs by Joseph P. Smith III

Is the “dot-com” era over as we know it? On June 13, 2012, ICANN revealed the list of applied-for new gTLDs. TLDs are the words at the end of a website’s address, such as <.com>.  ICANN is a non-profit organization responsible for managing the Internet’s system of unique identifiers, including domain names. ICANN describes itself as the definer of “policies for how the ‘names and numbers’ of the Internet should run.”

It is structured on a multi-stakeholder model including “registries, registrars, Internet Service Providers (ISPs), intellectual property advocates, commercial and business interests, non-commercial and non-profit interests, representation from more than 100 governments, and a global array of individual Internet users.” ICANN contracts with generic top-level domain registries and registrars to manage the Internet’s domains. Each registrar is required to enter into a register accreditation agreement with ICANN, which gives registrars the ability to register new domains.

This article’s purpose is to provide a general understanding of the legal and financial implications of the new gTLDs.  By looking at the history and functionality of generic top-level domains, the reader will hopefully have the requisite background to understand the implications of adding new top-level domains.  The article discusses the following topics.

Section III of this article examines the positive and negative implications of introducing new gTLDs.  This section discusses ICANN’s stated policy goals in introducing new generic top-level domains, it addresses the potential benefits of introducing new top-level domains based on economic and trademark rationales, and it analyzes the negative implications of introducing new generic top-level domains and why these negative effects outweigh any positives.  Specifically, it dismisses ICANN’s argument that new generic top-level domains are necessary, exposes the conflict between private ownership of generic top-level domains and trademark law, discusses the detrimental effect new generic top-level domains will have on the FTC’s ability to prosecute online fraud, and addresses the persistent ethical concerns raised by the apparent conflicts of interest between ICANN officials and new generic top-level domain applicants.

Section IV of this article proposes three remedial measures that attempt to alleviate some of the problems addressed in Part C of section III.  It proposes that ICANN implement a small pilot program rather than continue its plan of examining the roughly 2000 applications it received for new generic top-level domains, that ICANN increase the transparency of the organization in two ways, and that ICANN tweak its Trademark Clearinghouse procedure to balance the power between trademark owners and Internet users.

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