ROUNDTABLE
technology. Tey are hunting and they’re thinking about it very deeply. We may be surprised by some of the ingenuity and creativity that we see.
NWS: Tat’s what’s really exciting. I’m expecting to be surprised.
What are the chances of litigation afterwards?
ACS: Conflict occurs when money changes hands. Te question is will money change hands? If so, it will be litigated. If you talk about controlling whole areas of generics, you’re going to defend that a lot harder, and not allow any encroachment on that.
SK: Tink of something like .app, on its own. Imagine who will be applying for .app? Is it a trademarked term? Will there be litigation around a successful opposition based on a trademark? What about a failed opposition based on a trademark? If no opposition, how much will that gTLD go for in a lottery? $10 million? $100 million? Tis is an issue that is already being litigated extensively over uses that do not, theoretically, have as high stakes as potential control of that string.
Is this bound to end in litigation? What can ICANN do to manage this?
DT: Tis is exactly what the Implementation Recommendation Team (IRT) was set up by ICANN for, to design suitable rights protection mechanisms for the new gTLD environment. Te goal of protection mechanisms is for the good of the Internet and the consumer, not just brands. Without that you are leſt with litigation, and unfortunately I think litigation is inevitable.
ACS: Te more ICANN takes it on itself to decide who should own and who should be entitled to own, the more it will bring itself into the domain of competition law. Tere is now such a huge value attached to intangibles. If ICANN runs a process
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and makes a decision someone doesn’t want I can see that someone will say that opening a particular domain is a market segment and is anti-competitive. If someone else owns .charity and you’re a charity and to be recognised in the market you have to have a piece of that, is that anti-competitive? Quite possibly. It will come up in a different way but I can definitely see anti-competitive issues arising from this and the more ICANN controls the process the more it’s in the frame.
NWS: Tat’s why it hasn’t controlled it too much. It’s done that deliberately.
ACS: Tat’s a smart move, but I can see ICANN being joined into these proceedings
Is ICANN capable of managing the workload in the long term, and how will that organisation need to change?
LG: We will see some radical changes in ICANN in the long term by virtue of different participants.
AC: Absolutely. Tey have had to regulate 23 TLDs and are now looking at regulating probably 500 minimum. ICANN’s approach is that the same rules will apply to .horse as to .com. I think that ICANN's intention is that all that will change is the scale, not how a new gTLD is treated. A relatively bounded problem; you just throw more bodies at it. However, I think ICANN will be challenged by a lot of different, unforeseen issues. For example, I think that only one registry back end provider, providing services for a gTLD, has changed during the operation of that TLD.. But if 400 or 500 are out there and it’s now a truly commercial marketplace in operating registries alone, that may be set to change.
DT: You have a proliferation of suppliers. Tere’s new kids on the block, and a need for that, since registry service providers don’t know how many they’re going to have. We talk to clients and it’s amazing how
Trademarks Brands and the Internet Volume 1, Issue 1
many registry service providers say we’re advising so and so but what they mean is that they’ve talked to them, not that they’re working with them. So the same applicant may be on the books of several registry service providers which fudges the figures.
SK: All these brand owners are suddenly in the registry constituency and this will force a change at ICANN, whether it likes it or not. Te ICANN community—or some of it—seems to be trying to say, more or less, that there should still be a priority for more traditional registry providers.
NWS: Voting rights will depend on the number of registrations and hence ICANN fee volumes, and brands are likely to be quite small registries, so it shouldn’t be a game-changer.
SK: Well yes, but say you take 500 .brands. Out of them only 100 send representatives to ICANN. Even if they only have a quarter of a vote, it’s still a huge volume at the table that wasn’t there before with a very different perspective on governance.
LG: Also, the brands have an influence on the back end service providers.
DT: Tere we’ll see the politics change. At the moment, for instance, the structure is that the registries and registrars are on one side of the ICANN Generic Names Supporting Organization house and everyone else is on the other, with everyone else oſten having very divergent views. Even when consensus is obtained on one side of the house, take whois as an example, policy can still be blocked. But if the other side of the house has a large chunk of registries suddenly becoming brands, that changes. A brand could give away everything for free and end up with 50 million registrations and get weighted voting. Big brands might come together and that can change things. But perhaps I am dreaming.
LG: Even with weighted voting, imagine the scenario where you have 100 brands and three incumbents around a table and the three always
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