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Trademark lobby keeps up pressure on ICANN

Kevin Murphy, October 24, 2010, Domain Policy

The International Trademark Association is continuing to press ICANN into commissioning a study of the potential economic “harms” its new top-level domain program could cause.

INTA executive director Alan Drewsen earlier this month sent ICANN a quick reminder (pdf) that it expects to see the study carried out before the new TLD application round launches.

The trademark lobby believes that new TLDs will increase costs to brand-conscious businesses through an increase in the number of defensive registrations and dispute proceedings they have to pay for.

ICANN hired some third-party analysts to look into the issue, and published a preliminary report in July that basically just speculated about studies that could be carried out in future.

The plan was to carry out a second-phase study, which was to begin after public comments on the first report had been analyzed and summarized by ICANN staff.

Three months after the public comment period closed, this analysis has not been published and there’s no news on phase two.

INTA’s latest missive also notes that the ICANN board does not appear to have discussed the economic study at its Trondheim meeting in September.

Drewson also refers back to previous correspondence, sent in early September by INTA president Heather Steinmeyer, in which she wrote:

trademark owners believe that such a study is not only a sensible recommendation, but an essential prerequisite before any rollout of new gTLDs.

It’s not clear to me whether ICANN also thinks the study needs to be completed before the new TLD program launches.

Such a study would presumably take some considerable time to compile, and noises from ICANN currently point to the program becoming finalized at some point in the next six months.

If the study were to conclude that new TLDs would be hugely financially damaging, after three years of work… well, red faces would be the very least concern.

Group wants trademark study before new TLDs launch

Kevin Murphy, September 21, 2010, Domain Services

The International Trademark Association has told ICANN it believes a study into the economic “harms” of launching new TLDs is “essential” before the program gets under way.

INTA president Heather Steinmeyer wrote, in a September 8 letter (pdf) published today (my emphasis):

We applaud the recommendation… to conduct a study to assess the harms associated with intellectual property abuse and related forms of consumer fraud in the domain name system, including how the current gTLDs have affected intellectual property and consumers since their introduction. Indeed trademark owners believe that such a study is not only a sensible recommendation, but an essential prerequisite before any rollout of new gTLDs.

Steinmeyer offered INTA’s assistance with any such study.

The recommendation she refers to can be found in “An Economic Framework for the Analysis of the Expansion of Generic Top-Level Domain Names”, a report prepared for ICANN by three independent economists in June.

That report made a number of suggestions for possible further studies of the possible benefits and harms (although Steinmeyer only mentions the harms) of introducing new TLDs. It did not make any firm conclusions.

Following a public comment period that ended July 22, the status of that report appears to be ‘in limbo’.

The public comments have not yet been compiled into a summary and analysis document and as far as I can tell no other action has been taken on the report’s recommendations.

At least one ICANN director, chairman Peter Dengate Thrush, seems to consider the problem of balancing trademark protection and other parties’ interests pretty much resolved.

Just last week, in a fairly strongly worded statement at the Internet Governance Forum in Vilnius, Lithuania, he said:

The IP lawyers… have had their chance to make all these cases in a five-year process, and the intellectual property protections that have been put in place are the result of a delicate balance that has been wrought with everybody in the community, not just with the IP lawyers. IP lawyers always want more protections.

Could litigation delay ICANN’s new TLDs?

Intellectual property lawyers are wondering aloud about the possibility of ICANN being sued in order to delay the launch of new top-level domains.

The idea was raised during a panel at the annual meeting of INTA, the International Trademark Association, in Boston yesterday, according to its daily newsletter (pdf).

Kristina Rosette of the law firm Covington & Burling reportedly “suggested litigation is a possibility to slow down the application launch. One source of litigation could be trademark owners, worried about mass cybersquatting”.

That’s reported speech, by the way, not a quote. The article does not make clear the context.

Rosette is Intellectual Property Constituency representative for North America on ICANN’s GNSO Council.

The IP community is worried that the launch of new TLDs will lead to companies splurging more money unnecessarily on defensive registrations.

The current best, arguably most optimistic guess on the new TLD timeline comes from registry hopeful Minds + Machines. M+M has applications opening next April.

A delay in the launch of new TLDs would hurt most the startup companies that intend to apply for them, and the service providers and consultants hoping to facilitate the launches.

Some of these companies make minimal revenue, are dependent on funding, and would prefer applications open sooner rather than later.