By Paul D. McGrady, Jr., Shareholder, Greenberg Traurig / Author, McGrady on Domain Names
Well, there's not going to be a horse race because there's a three-month application window and there is, at least the way the applicant guide book is written today, no benefit to being the first application in. You just have to have it in within the window. So if there are two applications for identical marks or for confusingly similar marks, they will go into what's called a "contention set". Any domain names that are confusingly similar to them will unfortunately be held up while that contention is resolved. Ultimately if the contention can't be resolved, then it will go to auction. And so whoever wants the top level domain name the most will have to pay ICANN quite a bit of money to outbid the other guy.
There's also this issue of the community application. If someone has a community that they believe that they represent, they can also file for a corresponding top level domain name. Even if it is a brand, if they qualify in a community analysis, their application can actually trump a brand.
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