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Intellectual Property

Paul D. McGrady, Jr., on the New gTLDs

ICANN is developing a framework to launch new gTLDs, and we can expect that the next twenty-four months will be a time of great change for the Internet and for brands as a result. The new gTLDs represent challenge, cost, risk and possible reward. Are you ready for the new gTLDs? In this Analysis, Paul D. McGrady discusses ICANN and gTLDs and offers his thoughts on dealing with the new gTLDs. He writes:

     The domain name system itself is a series of contracts, first between ICANN and registries (for example, the .com registry is VeriSign). The registries then contract with registrars such as GoDaddy, eNom and Network Solutions. Interestingly, the registrars have a direct contract with ICANN as well. Lastly, registrants of domain names enter into contracts with registrars, most often the "click through" variety found on the registrar's webpage. Even the informal dispute mechanism for domain names, known as the "UDRP" is itself contractual: it is "binding consensus policy," and therefore is a part of the registry and registrar agreements with ICANN. The UDRP is also a mandatory provision in every registrar's contract with every registrant. ICANN's various policies are developed through a "bottom up consensus" process, which means none of the stakeholders is ever happy with everything.


Applying for a New gTLD

     The application period for the free-for-all opens on January 12, 2012 and closes April 12, 2012. While ICANN expects to have multiple rounds, there is no date certain when that next round will open. Unlike the protections it has taken to ensure that no one applies for a gTLD consisting of ICANN's own mark, ICANN will not be taking any steps to protect your marks against a third party who may apply for a confusingly similar term. You will have to review the applications and either oppose-using an untested ICANN dispute process-or sue in the federal courts.

Watch for additional Emerging Issues Analyses in the coming weeks dealing in depth with important new gTLD topics, such as how to properly restrict a .brand registry, impact of ICANN consensus policy on new gTLD registries, and pre-application activities that every potential applicant should be considering.

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