Tuesday, June 29, 2010

"Discrete, Limited Rounds?" ICANN's Economic Analysis of New TLDs

Somewhat lost in the coverage of the recent ICANN meeting in Brussels was the release of "An Economic Framework for the Analysis of the Expansion of Generic Top-Level Domain Names" on June 16th, a copy of which is available here.

The first 10 pages, comprising the Introduction and Overview and Background sections, provide a nice overview of how we got to this point and should be mandatory reading for those how are new to the issue. The Theoretical Framework section outlines the pros and cons for the introduction of new TLDs, as well as the Department of Justice's concerns that prompted the Economic Evaluation itself. The next section consists of a survey of studies conducted by Summit Strategies, Minds + Machines, Edelman and Stahura, which makes me feel better personally to know that someone else has waded through these papers.

The final section, however, is the most useful, in the sense that suggestions are made in connection with analyzing the costs and benefits of the implementation of new TLDs. The authors conclude that analysis of domain name registration volumes, domain name resale prices, and the prevalence of domain name registrants switching to new TLDs should all be given low priority. The authors do posit, however, that the increased costs to trademark owners in connection with protecting their brands through domain name registration, monitoring and enforcement should be monitored and analyzed. The authors are also concerned with the costs to consumers due to consumer confusion and fragmentation of the Internet related to new TLDs, although that is obviously not easily measured or monitored.

Finally, the authors propose "it may be wise to continue ICANN's practice of introducing new gTLDs in discrete, limited rounds. It is impossible to predict the costs and benefits of new gTLDs accurately. By proceeding with multiple rounds, the biggest likely costs--consumer confusion and trademark protection--can be evaluated in the earlier rounds to make more accurate predictions about later rounds." That does sound wise and kudos to Michael L. Katz, Gregory L. Rosston and Theresa Sullivan for contributing to the discussion. Nevertheless, when I remotely asked the panel for "Brand Management in the Age of New gTLDs" at the ICANN meeting in Brussels the likelihood of implementing new TLDs in "discrete, limited rounds," the response was mostly chuckles.

Tuesday, June 8, 2010

ManagingIP: Why Brand Owners Need New Internet Strategies

On May 26, 2010, Managing Intellectual Property published a piece titled, "Why Brand Owners Need New Internet Strategies," in relation to the recent introduction of IDNs and the planned implementation of new TLDs. While it it possible that private-party litigation or governmental interference could slow down the implementation of new TLDs, trademark owners need to recognize that new TLDs remain on the horizon. Two of the speakers referenced in the piece even recommended that brand owners may benefit from creating a special department targeted at dealing specifically with domain name issues.

MarkMonitor Surveys Corporate Clients: Majority Undecided on New TLDs

On May 20, 2010, MarkMonitor reported the results of its corporate client survey concerning its clients' intent to register a new TLD. Based on the response of 95 survey participants, MarkMonitor found that 22% intended to apply for a new TLD, 23% do not intend to apply and the remaining 55% had not determined whether to apply for a new TLD.

ICANN's Registration Abuse Policies Working Group Recommends Initiation of a Policy Development Process to Investigate the Current State of the UDRP

On May 29, 2010, ICANN's Registration Abuse Policies Working Group published its Final Report with regard to domain name registration abuse to be considered by the GNSO Council.

The 14 members of the group consented unanimously to the following recommendation:

Recommendation #1:
The RAPWG recommends the initiation of a Policy Development Process by requesting an Issues Report to investigate the current state of the UDRP, and consider balanced revisions to address cybersquatting if appropriate. This effort should consider:
How the UDRP has addressed the problem of cybersquatting to date, and any insufficiencies/inequalities associated with the process.
Whether the definition of cybersquatting inherent within the existing UDRP language needs to be reviewed or updated.

Interestingly, the 14 members of the group split evenly with regard to the second recommendation, with seven members in favor of View A and seven members in favor of View B.

View A: The RAPWG recommends the initiation of a Policy Development Process by requesting an Issues Report to investigate the appropriateness and effectiveness of how any Rights Protection Mechanisms that are developed elsewhere in the community (e.g. the New gTLD program) can be applied to the problem of cybersquatting in the current gTLD space.

View B: The initiation of such a process is premature; the effectiveness and consequences of the Rights Protection Mechanisms proposed for the new TLDs is unknown. Discussion of RPMs should continue via the New TLD program. Experience with them should be gained before considering their appropriate relation (if any) to the existing TLD space.