Friday, August 3, 2012

Top-Level Domain Tasting

by Thomas O'Toole

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Not exactly, but sort of. In comments filed with the Internet Corporation for Assigned Names and Numbers, both Microsoft and Yahoo! urged the domain name administrator to consider permitting brand owners who file purely “defensive” applications for the top-level domain corresponding to their mark to receive a refund of most of their $185,000 application fee in the event their mark is not applied for by a third-party. Microsoft put the appropriate refund amount at $162,000. Yahoo! argued for a “full (or at least partial but substantial) refund” of the application fee. Microsoft thought that brand owners should have seven days to decide whether to withdraw their application. Yahoo! said that 10 days to two weeks was about right.

February 27 was the deadline for comments on ICANN’s request for public input on why trademark owners believe it is necessary to file very expensive, purely “defensive” applications to operate a new top-level domain. I found the comments – there were about a dozen in all, many from trademark owner groups – illuminating to the extent that they provided a window on the the breadth of trademark distrust/resentment toward ICANN and the domain name industry. Yahoo! offered the following assessment of how trademark owners feel about the coming new top-level domains:

[I]t does not take a huge leap of logic or faith for us to expect there to be individuals and companies (sadly, including some companies within the registrar world), who have the cash reserves to jump into the .brand application fray, and the financial incentive, in the absence of better brand protection mechanisms, to try to hold legitimate brand owners hostage for sizeable settlement fees in return for the relevant .brand. As distasteful as it may feel to file an application for defensive purposes, our experience leads us to believe that many brand owners feel that it is the better (more efficient, more immediate) business choice, if not the ONLY business choice, when so much uncertainty still remains around the new gTLD process, when the next round will being, etc. The decision to file for defensive purposes seems all the more essential given ICANN’s persistent watering down (if not outright rejection) of numerous brand protection mechanisms which might otherwise have minimized brand abuse in an expanded DNS.

No one knows what ICANN will do with the comments it receives. The application process has begun. Possibly hundreds of applications have already been filed, and business decisions made, in reliance on the rules set out in the current applicant guidebook.

By Thomas O’Toole

Follow me on Twitter at @tjotoole.

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