NEW gTLDs

Top Level Domains (gTLDs) are the letters following the “.”, for example: .com;      .net;      .org;        .travel, and so on. For those who have followed the new gTLD process at ICANN (The internet Corporation for Assigned Names and Numbers), it has been a tortuous and often confusing route. Plagued with politics and the conflicting views always present in ICANN debates emanating from commercial interests on one side, noncommercial on another, and yet more views from Brand owners and others whose rights are impacted by this explosive growth in the domain name system.
 
For those who only know little about ICANN or indeed the DNS (domain name system) largely under the administration of ICANN (a not for profit California corporation created at the behest of the U.S. Secretary of Commerce in 1998 at the request of the Clinton White House) it is important to know its basic history. Its purpose on creation was (essentially) to do two things:       
 
1) To create and ensure healthy competition in the DNS ending the monopoly of NSI as the only Registrar and the only Registry; and
 
2) To create a private corporate vehicle to  permit the ordinary users of the system from anywhere  to participate in and to govern it in a ‘Bottom up consensus driven organisation’ imitating the method in which the internet had operated for years and on its own for decades.
 
ICANN has more or less succeeded in both tasks despite many difficult challenges of various kinds which it has faced from birth.
 
The question of whether ICANN should allow more new gTLDs and in particular “adding an unlimited number of new gTLDs” was hotly debated in the ICANN community for several years.  To do so is on its face part of ICANNs mandate under heading number one.  However, its implications are far-reaching and there are still those who feel this is unnecessary or actually a mistake as it is simply “money” driven not ‘marketplace need’ driven.  It will certainly dramatically expand the number of registries, (though the vast majority will operate their registry through ‘’the back door’’ using the services of an existing and well established Registry) competition and the number of domain names and the kinds of businesses/services which will operate in the DNS. 
 
ICANN hopes it will spawn tremendous innovation of all kinds and add connectivity to all corners of the Globe in new, exciting and useful ways.  However, in addition to the hopes above there is clearly the serious business of “business” driving much of this expansion and the applications for new gTLDs.
 
Some Applicants are hoping they will get one or more gTLDs that will prove immensely profitable and result in the public buying many 2^nd level domain names in their gTLD - thus producing, in several ways, what could be an enormous revenue stream.
 
Some are purchasing gTLDs to ‘protect their turf’.  Ensuring no one else can get it, while others are planning to use the gTLD as a part of Brand management and Brand development, or applying for altruistic reasons to promote a particular interest globally with no profit motive.
 
Some are seeking a gTLD as they think they can sell it for a profit either to other applicants for the same ‘string’ (gTLD) or to others.  Some are rumored to be considering business models where there is no charge to have a domain name in their gTLDs and fuel attraction to same thus improving advertising revenue and other income generating operations.  Some wish to avoid confusion and cyber crime in relation to their brand and hopefully end their need to acquire thousands of unwanted domain names just to avoid their use and the concomitant confusion created.  Some wish to use the gTLD to market their brand and drive even more traffic to their on-line business but creating more security and certainty about the sites visited.
 
No doubt there are other reasons both business and otherwise at play in this giant DNS game now playing out at ICANN.  Governments have also expressed interest and some concerns through the GAC (Government Advisory Committee) which is part of ICANN and enjoys special status under ICANN’s By-Laws.  The UN - through the ITU and others - have expressed serious concerns about ICANN’s management (or mismanagement) of the gTLD expansion and about other aspects of ICANN’s stewardship of the DNS and IANA.  This has been an ongoing debate for many years and appears to be heading for some kind of climax in the near future as the ITU gathers supporters of its view that it, rather than ICANN, should have either full management of the DNS or a significant part of what ICANN now does.  This is a serious debate with serious implications for everyone and the new gTLD program has been a catalyst for it.
 
It is no exaggeration that what is now taking place in the DNS, including the introduction of an expanded domain name availability through IPV6, the huge increase in the number of Top Level Domains and the business and other enterprises they will support all in the midst of an ongoing political battle as to who will control the internet/DNS will affect everyone around the globe.  This is a process to which everyone should be paying close attention.  Anyone can join and participate in ICANN, and we recommend you do so.

 
Jonathan C. Cohen, B.A., L.L.B. is a Managing Partner of Shapiro Cohen and has lectured widely on trademark law.  His speaking engagements included a United Nations Conference, the Committee on Foreign Relations, the Canadian government and a U.S. Congressional Committee.  He served on the Board of Directors of ICANN, CIRA, the IPC and IRT.  He has expertise in the trademark and domain name fields including Internet governance, UDRP, and new gTLDs.  He advises clients in many different businesses. 
 
Jonathan has appeared as Counsel in the Federal Court, the Federal Court of Appeal and the Superior Court of Justice.  He continues to handle many oppositions and court matters.  Recently, Jonathan was named one of Canada’s Top Lawyers of 2012 by Martindale-Hubbell.
 
Jonathan Cohen can be contacted by phone on +1 613 232 5300 or alternatively via email at jcohen@shapirocohen.com