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Thursday, January 3, 2013

Cyberlaw Predictions: ICANN's Brand New Day

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This post is the fifth in a series of predictions from legal and business experts about the directions cyberlaw policy might take in 2013, solicited by editors of BNA's Electronic Commerce & Law Report during the closing weeks of 2012. We asked that the remarks be brief -- something along the lines of a Twitter "tweet" or an elevator pitch. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts responded, producing 307 separate assessments, predictions, or just plain complaints regarding any of the many legal subject areas that affect online businesses.

The Internet Corporation for Assigned Names and Numbers, after a very long, messy, seemingly ad hoc, and at-times troubled gestation period, is about to midwife a large number of new top-level internet domains. In all of this, ICANN has done (sort of) exactly what the U.S. Department of Commerce asked it to do in the 1998 Memorandum of Understanding: create new top-level domains, bring competition to the domain name industry, and operate through a bottom-up, consensus-based process. If the new gTLD process plays out as designed, the domains that eventually emerge in 2013-14 will be those chosen by, and financed by, private industry -- not by ICANN or by a government agency.

icann logo

As anyone who has followed this process knows, many trademark owners see the new top-level domains as fertile ground for cybersquatters (I will publish their views in the next post). Today, however, I'm publishing the views of those who see innovation, consumer benefits,  and mostly positive change coming from the new top-level domains.

The experts' views:

Despite 10 years' preparation, ICANN swamped by 2,000 new gTLD applications, many from brands concerned about cybersquatting. New gTLDs accredited in 2012: zero. Christine Jones, @attyjones, Former General Counsel, GoDaddy.com, Phoenix, Ariz.

Consumer benefits of new gTLDs? Wait until you see. They will far exceed the costs, including the costs of getting to this point. Paul Stahura, @stahura, CEO, Donuts Inc., Bellevue, Wash.

The new Top-Level Domain program, and the myriad of new laws that underpin it, including IP, trademark and privacy legislation, will see a paradigm shift in how the internet is consumed across the globe. Adrian Kinderis, @AdrianKinderis, Chief Executive Officer, ARI Registry Services, Melbourne & Los Angeles.

2013 will be the year of New gTLDs and the beginning of a dramatic and long overdue expansion of the domain name space! Kathryn Kleiman, @KleimK, Internet Counsel, Fletcher Heald & Hildreth, Arlington, Va.

2013 may see the domain name floodgates open if ICANN finally moves ahead with its new gTLD program. Conventional wisdom is that this will lead to massive cybersquatting in the new domains, and I agree. But the real story will be the beginning of the end of the domain name system, as domain confusion sends more and more consumers into search. David Bernstein, Partner, Debevoise & Plimpton LLP, New York, N.Y.

New gTLDs will start appearing at the rate of 20 per week from mid 2013. The strategy of defensive registrations in all TLDs will be prohibitively expensive, an unrealistic option for nearly all brands. Brand owners need to determine their registration strategy - from both a brand protection and brand promotion perspective--in early 2013 to be ready for the rush. Martin Burke, @melbourneitdbs, EVP, Melbourne IT DBS, London.

The first new TLD will be an IDN--non-ASCII characters--and will enter the root system 2 weeks after ICANN meets in April in Beijing. Paul Stahura, @stahura, CEO, Donuts Inc., Bellevue, Wash.

The internet is about to get much larger--are you ready? In Spring 2013 a few hundred new domain registries (i.e., new .com's) will go live. The potential pitfalls and possibilities are tremendous. Brand owners are going to have to prioritize and develop new strategies to leverage and monitor new gTLDs in a rapidly expanding world. David Mitnick, @domainskate, Founder and President, Domain Skate LLC, New York, N.Y.

One of the greatest innovations that will impact the internet is the expansion to include internationalized domain names (IDNs)--the ability to utilize non-Latin characters. New TLDs in Chinese, Arabic, Cyrillic, etc. will have enormous consequences and dramatically transform the internet. Ellen Shankman, Principal, Advocate, Notary, Ellen B. Shankman & Associates, Rehovot, Israel.

With the litany of generic top-level domain (gTLD) applications filed this year and the impending roll out, lawyers/clients will want to follow this electronic land rush and the related disputes that develop. Joseph Geisman, @JoeGeisman, Vice President, Business and Legal Affairs, Maize Marketing, Los Angeles.

How much the new TLDs will spawn real innovation, rather than merely virtual real estate monetization game-changers, remains an interesting open question. Ellen Shankman, Principal, Advocate, Notary, Ellen B. Shankman & Associates, Rehovot, Israel.

If the arrival of hundreds of new gTLDs in 2013 wasn't enough, the growing trend among ccTLD operators to shift from a third level (example.co.uk) to second level (example.uk) registration model adds more complexity for brand owners. Japan and China have already made the shift, while the UK and New Zealand are mulling it over--with others sure to follow. Martin Burke, @melbourneitdbs, EVP, Melbourne IT DBS, London.

Ultimately it's all about "trust." Whether users will gravitate to new domain names, social media platforms or rely on search engines, the most important factor is one of "trust." Ellen Shankman, Principal, Advocate, Notary, Ellen B. Shankman & Associates, Rehovot, Israel.

Everyone I know said that opening up the internet so anyone can own a ".com" or ".whatever" was a terrible idea. But what is the alternative? If ICANN simply keeps the internet root zone "as is" does that keep would-be participants out? A multistakeholder internet is critical to global progress and giving everyone the opportunity to have an actual "stake" is definitely one way to foster this goal. David Mitnick, @domainskate, Founder and President, Domain Skate LLC, New York, N.Y.

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