ROUNDTABLE


“WHEN 23 gTLDs BECOMES 230 OR 2,300, YOU HAVE A DIFFERENT COMMUNITY AND A MASSIVE STAKEHOLDER, WHICH IF THEY ALIGN COULD CHANGE THINGS.”


win. What sort of an image is that? It’s not going to look good.


SK: You anger everyone that comes in to this. Tere are currently alternate roots out there. If enough users and governments get frustrated, there’s no reason why they can’t spin off, once they get used to the idea that they can run a registry or control a space. It sounds far-fetched, but why would you not in 10 years see the emergence of real alternate roots and spaces? Why should ICANN necessarily be the only player if they are rigging the game?


Is there something ICANN should do to reduce these risks?


ACS: Given the facilities that this creates that split might happen more quickly than we think. Tat’s not a criticism of ICANN, it’s a body of its own creation and it has to move on.


NWS: It has to do something.


ACS: I don’t think it can. It’s like it has locked governance in the system and thrown away the key.


SK: ICANN has to listen to the new gTLDs’ needs or people will move on.


ACS: But then ICANN becomes a weak regulator. Now a whole new body of people will be coming in saying we don’t like you as poacher or gamekeeper, so we’ll play the game a different way. Te economics of it will drive change. It has done a great job to get it this far.


NWS: But the other big question is, what would be less bad?


ACS: You could have ICANN and an independent regulator.


DT: It could go there. You have shiſting sands. ICANN don’t control the ccTLDs, and there are a lot more of those than the gTLDs. When 23 gTLDs becomes 230 or 2,300, you have a


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different community and a massive stakeholder, which if they align could change things. Te challenge is that we’re gazing into a crystal ball.


Is there a figure ICANN needs to have in say two years for this to work?


NWS: ICANN wants a Goldilocks number, not too hot or too cold.


DT: It said it wants about 500.


ACS: If I were ICANN, I would want to delegate the good ones first. It doesn't want the challenges of contentious ones initially, it wants the ones that will go through to delegation in a straightforward manner, in order to prove the programme is working. ICANN doesn't want to open itself up to more criticism through a mass of litigation with no TLDs being delegated at the other end. Tat's one reason why I think that there is no first-come, first-served menu when you apply, it is important to ensure the success of this programme.


Is there any chance it could flop? Could it be abandoned in five or six years?


DT: Tere’s always a danger of that. To every client I say it’s not for certain, it’s highly likely but you can’t bank on it 100 percent. Tat’s one of the problems.


NWS: But it’s as certain now as it ever has been.


AC: One interesting question is what happens when one of these registries fails commercially? If I'm running, say, .sport and I go bust, then if I'm one of the big sports manufacturers I should be looking at that as a potential commercial opportunity.


SK: And to take it to a second level, if you are a company and force your independent dealers to use a .brand and then the economy bombs


Trademarks Brands and the Internet Volume 1, Issue 1


and you’ve cut half the dealer network but their business is based on that .brand, there could be enormous litigation issues.


And might that implicate competition law again?


ACS: Te old question of whether you are dominant in the market takes on a whole new meaning. If you own .teddybear, you control the market. In the e-market are you dominant? Quite possibly you would be at some point. Do you have to allow people access to that?


Tis provides challenges to brands, but it also provides challenges to law firms and service providers: will we see new legal practices emerge, will we have lawyers just doing this?


DT: Yes it’s a whole new market. Te big difference is we’ve been working for a long time in the domain name space, but domain names have gone mainstream. Instead of $10 for a name, it’s now $185,000 a name so the $10 name, which was originally looked at by the IT and marketing and gradually moved to legal, whereas it moves straight up to the board. It’s become mainstream so yes it’s a big growth area, and fees follow that, so there a lot more lawyers looking at it as means of getting fees, the same as registries and registrars.


So is there a risk for law firms investing in the expertise?


DT: Certainly there’s an issue with ensuring the right competence to deal with it. I have found myself talking to a client who has already spoken to their registrar and others all encouraging an application to be made, but then I look at the extension, the pros, the cons, the business and legal risk, and quite oſten I say ‘I don’t think you should bother with applying in the first round’ and they are surprised. It’s not necessarily legal advice, but if there is no good reason for them to have it, then


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