Slicing Up the Domain Name Pie

When new Top Level Domain registries open their doors for business sometime in 2001, not everyone will have the same shot at registering domain names.

When new Top Level Domain registries open their doors for business sometime in 2001, not everyone will have the same shot at registering domain names.

That’s because the proposed initial registration policies have the potential to impact not only who can register new domain names, but also how those domains are used.

The Internet Corporation for Assigned Names and Numbers, the Internet’s managing authority, must still approve the TLD applications, which take varying approaches as to how the TLD pie will initially be sliced.

Anyone with a connection to the Net is invited to comment on the proposed Top Level Domains. Proposed TLDs range from .sex to .union.

After ICANN looks at all the applications, the full ICANN board of directors — including its newly elected members — will decide which TLDs will become a reality.

Some proposed registration policies would give trademark holders pre-registration rights to prevent cybersquatting, while others would protect free speech on the Net. Other novel approaches include shared domains and restrictions on resale to prevent domain name hoarding.

For example, Name.Space, a company that’s seeking to operate dozens of new TLDs, proposes interesting initial registration policies in its application to ICANN.

Name.Space would not allow individuals to register domain names that use other people’s trademarks.

“If somebody comes in and tries to register wired.web, most likely they will be turned down,” said Name.Space CEO Paul Garrin.

Conversely, he added, “Wired cannot have wired.sucks and CNN can’t have cnn.sucks. That’s reserved for parody and criticism. I think that’s a balanced approach because it protects free speech and trademarks.”

Garrin said his company is also taking steps to prevent domain name hoarding and speculation by requiring actual use of the domain within one year of registration, and by putting certain limitations on the resale of domain names.

“They can’t sell the domain, and if we catch them doing that we’re going to take it back,” he said. “There are people who like to play the domain name aftermarket — they should go play in .com.”

Unlike the database of trademark terms proposed by Name.Space, other companies are giving trademark holders what they’ve wanted for a long time — a first shot at registration, a piece of the pie with their name on it.

Such is the approach taken by Afilias, a consortium of big-name registry players included Network Solutions, Regsiter.com and 17 other registrars and companies. If approved, the consortium’s bid to run .info, .site and .web would include a three-step initial registration process.

“First, there’s going to be a sunrise period that will last 60 days in which trademark holders can register domains,” said John Kane, Afilias spokesman.

A 30-day period will follow to sort out competing trademark claims followed by the final “land rush” period in which the public at large will be allowed to register domain names .info, .site and .web, he said.

It may take the luck of the draw to score a domain name. Kane said that multiple registrars would accept registrations, but that Afilias will use a round robin to filch out the first registrations.

Not surprisingly, free speech advocates criticized the Afilias sunrise proposal.

“The last thing that needed to be done was to provide more rights to trademark holders,” said Zak Macovitch, publisher of Domain Name Law Reports, a volunteer organization that summarizes decisions arising out of ICANN’s domain dispute resolution process.

Macovitch said more than 80 percent of disputes between trademark holders and domain name holders result in a victory for the company. The sunrise period would only add to the “golden and ironclad rights” enjoyed by trademark holders.

Other initial registration policies introduce previously unheard of rules into the domain name game.

.Kids Domains, for example, hopes to carve out a “green space” free from content harmful to minors by imposing contract terms in the registry agreement. .Kids Domains has also said that it will take a shared domain approach to domain names with competing trademark holders.

“There can be only one united.firm, but there are clearly many companies worldwide who have rights to that name — and that’s accepting the proposition that only commercial interests have rights,” said law professor Michael Geist. “The idea of sharing a domain is an interesting solution.”

But Geist said that by monitoring who registers what domain name and regulating use, registrars may be asking for legal liability.

“I’m concerned with domains like .kids and .xxx, where the registrar isn’t just deciding who can register domain name names, but also what they can do with the page,” Geist said. “It’s a content based regulation.”

Aside from issues of which community standards to apply to the Net, Geist said that such restrictions may add legal risk to the operation even if registrars try to disclaim liability through registry contract provisions.

“The contract will clearly spell out that they don’t have any liability, but we’ve seen cases where courts are more likely to find liability if you monitor content,” Geist said.

Other TLD applications — while still restrictive — are less troublesome from a legal standpoint due to the nature of the TLDs proposed.

For example, domains under .union will only be available to bona fide trade and union organizations. The same applies to .coop and .law, with the domains in the latter TLD being available to attorneys only if they have good standing with the bar.

Author: Oscar S. Cisneros

News Service: Wired News

URL: http://www.wired.com/news/business/0,1367,39455,00.html