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.brand TLDs still face barriers

Kevin Murphy, May 16, 2011, 15:42:41 (UTC), Domain Policy

Companies planning to apply for “.brand” top-level domains still have concerns that ICANN’s new gTLD program does not adequately cater to their unique requirements.

ICANN has so far resisted calls from the likes of the Coalition for Online Accountability to create clearly delineated categories of gTLD, instead favoring the one-size-fits-all approach.

But one type of gTLD where the Applicant Guidebook has started to introduce exceptions to the rules is the so-called “.brand”.

In its latest draft, for example, the Guidebook’s Code of Conduct for vertically integrated registries/registrars does not apply to single-registrant TLDs such as .brands.

The Guidebook also makes it mostly clear that ICANN does not intend to re-assign .brands to different registry operators in the event that the brand decides to discontinue the TLD.

But those who are working with potential .brand applicants still have concerns.

Co-existence

Arguably biggest outstanding problem to emerge from the latest set of comments filed with ICANN is the notion of “co-existence”, raised by the likes of Valideus, ECTA and the Business Constituency.

The Guidebook currently calls for TLDs that are potentially confusing in meaning or appearance to be lumped into the same “contention sets” from which only one winner will emerge.

The worry is that this will capture companies with similar sounding brands. ECTA called for a mechanism to exclude .brands from these requirements:

The Draft Applicant Guidebook 6 does not take into account either co‐existence agreements or natural co‐existence. Currently a successful application from NBC in round one would preclude ABC or BBC or NBA in future years. Equally, should both EMI, the music company and ENI, the energy company apply, they would be placed in a Contention Set and could in theory face each other in an auction. In the real world these companies co‐exist.

It’s an interesting point, and not one that’s received a great deal of airplay in recent discussions.

There’s also the problem that companies with two-letter brands, such as HP or BP, are essentially banned from getting their .brand, because there’s a three-letter minimum on new TLDs.

Geographic name protections

The ICANN Governmental Advisory Committee has pushed hard for the protection of geographical terms at the second level in new gTLDs, and has won significant concessions.

One of the results of this is that if Canon, say, has .canon approved, it will be unable to immediately use usa.canon or japan.canon domains names – one of the most logical uses of a .brand.

ICANN plans to enable registries to loosen up these restrictions, but the Guidebook does not currently spell out how this will happen, which leaves a significant question mark over the value of a .brand.

ECTA wrote in its comments to ICANN:

This prohibition severely limits brand owners unnecessarily. On the contrary a .brand domain should provide clients with an intuitive replacement for ccTLDs. It would seem to be more logical if Internet users could replace www.mycompany.de with www.de.mycompany rather than having to type www.mycompany/de.

Registrar discrimination

The BC has called for the Guidebook to be rephrased to made it clear that .brand TLDs should not have to offer their domains through a multitude of registrars on “non-discriminatory” terms.

The BC wants this language adding to the rules: “Single-Registrant TLDs may establish discriminatory criteria for registrars qualified to register names in the TLD.”

Given .brands will have essentially one customer, it would be a pretty crazy situation if more than one registrar was approved to sell them. It may be a hypothetical risk, but this is a strange industry.

UDRP

All new gTLD registries will have to abide by the Uniform Dispute Resolution Process. The problem is that successful UDRP cases generally result in a domain name being transferred to the complainant.

This could result in a situation where a third-party trademark holder manages to win control a domain name in a competitor’s .brand TLD, which would be intolerable for any brand owner.

The BC suggests that domains won in this way should be allowed to be set to “reserved and non-resolving” instead of changing hands.

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Comments (3)

  1. […] INTA seconded this call, using the position of ICANN’s Government Advisory Committee (GAC) for weight. “INTA agrees with the GAC that some protection beyond exact match of a clearinghouse mark is needed… Strings which fall into these categories could be automatically flagged by software, thus eliminating the need for the clearinghouse to exercise discretion. A familiar example is ‘spinner’ software, which shows potential registrants available variants of a domain name they have or wish to register.” However, the furore in the domain name community over Fox’s imagined $12 million cost is backed up by the argument that cybersquatting in ‘.com’ focuses on ‘brand+keyword’ terms, which is not the case in newer TLDs. “If you look at the about 100 UDRP cases to be filed so far in ‘.co’, it seems that brand-only cybersquatting is clearly the order of the day,” reports Kevin Murphy on DomainIncite. […]

  2. […] for their sites, so brand.cn and brand.de could be replaced with china.brand and germany.brand (although the current new gTLD policies forbids this, ICANN plans to allow it). But then that obviously raises the question of the translations used for each country […]

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