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By Paul D. McGrady, Jr., Shareholder, Greenberg Traurig /
Author, McGrady on Domain Names
One of the new topics
that general counsel need especially to be aware of is ICANN's plan to launch
new top-level domain names. ICANN
(Internet Corporation for Assigned Names and Numbers) is the outfit that runs
the domain naming system and they are in the final stages of policy development
to launch new extensions that will be in place of dot com.
Dot com's not going
away - it's just a new opportunity for additional domain names. And some of those
domain names will be brands because it's open to everybody, even brands.
So, for example there
may be, in a few years from now, a "dot Coke" or a "dot
Pepsi". Companies will have
important branding decisions that are going to affect marketing outcomes and
all sorts of things.
There are also very
important legal consequences to all this because, essentially, your brand will
be wrapped into a registry. There will
be ramifications in terms of having to deal with ICANN on branding and registry
issues and also how you take your message in the new top level domain name to
There are some things
to be concerned about. The first thing
is preclusion. ICANN is going to do round one.
And they say, a year after round one, they're going to try again with
round two. Of course, the last time they
did a new top-level domain name round, it was seven or eight years between that
one and the new one. And so, since ICANN
is not known for their speed at moving things forward, I don't think anybody
can really count on that one year window at getting a second chance.
The other thing to be
concerned about is that they're not going to allow top-level domain names that
are confusingly similar to each other.
So, if you have a brand that's very close to somebody else's brand, even
though, in your mind, the brand names are distinct, ICANN's examination experts
may not find them to be very unique from each other. So, for example, UPS and UBS are quite close
and it's not very clear at this stage whether or not the ICANN examiners are
going to allow those two marks to co-exist in a top level domain name.
If you share a
trademark, it's especially something to be concerned about. A good example of two great companies that
share a mark in this country is Delta faucets and Delta airlines. In that situation, there can only be one dot
Delta. And so those companies have
questions even before the application process starts about how do we work out
co-existence, how do we do those things to make sure that everybody continues
to get along and not step on each other's toes.
To learn more, join me for a complimentary CLE Credited LexisNexis®
Webinar: Starting an Online Business - Best Practices, on June 14, 2011, at 2
p.m. Eastern time. To learn more about the webinar or register, click here http://www.eventsvc.com/LexisNexis_HB.
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