With all of this as background, let us now move (finally) to Part 3 – ICANN and new domain names.
Currently ICANN is considering the approval of new Generic Top Level Domains (gTLDs).
More accurately - ICANN is considering a new PROCESS for the approval of new gTLDs.
According to the ICANN website –
“The development of an appropriate process and policy for the creation of new generic top-level domains (gTLDs) is central to fostering choice and competition in the provision of domain registration services, and as such is critical to the promotion of ICANN’s core values.
The questions to be addressed in the implementation of a new gTLD strategy…draw on technical, economic, operational, legal, public policy and other elements.”
ICANN’s president, Paul Twomey, has this to say –
“This is all about providing internet users with choice. More top-level domains…mean more competition, more options and the possibility for more targeted or user-specific domain names.
When coupled with ICANN’s current work on introducing internationalized domain names, it is possible that hundreds and eventually more than 1,000 new TLDs could be created.”
In the past, new gTLDs (such as .mobi and .jobs) were approved after proposals were presented to ICANN during specific application periods. If an application period was not open, no gTLD proposals were accepted.
What is happening now is that ICANN is moving toward creating a uniform system for gTLD proposals.
Once this system is created, theoretically anyone can apply for a gTLD, and these domains could theoretically be “dot ANYTHING YOU WANT.”
This sounds great, right? So what is the debate all about?
The debate centers around the proposed approval process for this uniform gTLD application system.
Questions such as, “Who decides whether my domain gets approval?” and “On what grounds are these decisions made” and “Will the process be open for comment and appeal?” and “What gives ICANN the power to do this?” are surfacing.
The GNSO (Generic Names Supporting Organization) is the sub-group within ICANN that has been researching the creation of this system.
It has recently drafted a proposal with recommendations for this new system, and this proposal is currently open for public comments until August 30th, 2007. The GNSO will then submit the proposal to the Board of Directors for voting at the October ICANN meeting in Los Angeles.
Of particular interest is a recommendation which limits the approval of domain names based on standards of “legal norms relating to morality and public order.”
One concern is that this new application process will give a great deal of consideration to the interests of trademark owners and relatively little consideration to other interests, including the use of personal names, cultural/geographic indicators and parodies as domain names.
Another concern is that ICANN’s approval or rejection of new domain names gives ICANN too much power in determining what constitutes “morality and public order.”
Critics argue that such determinations are better left to individual governments, as ICANN may not be best equipped to make universal judgments on a subject that varies from region to region.
And although, if given the right to make these judgments, some governments might err on the side of restriveness, if ICANN errs on the side of restrictiveness – this judgment will apply to all nations using the internet.
Simply put, what ICANN does not do, others may still do. But what ICANN does cannot be undone by others.
Essentially, the argument is that these decisions are political in nature, and ICANN should not be making political decisions.
According to Professor Jacqueline Lipton of Case Western Law School,
“ICANN’s expertise is largely technical and functional.
It is not a body staffed with people whose main expertise is to deal with these difficult balances of competing legal and social interests in multiple societies around the world.
Effectively bringing debates about international public order and morality, as well as free speech and human rights generally, into a predominantly technical process comes at a high cost. However, failing to address these issues in a relevant forum also comes at a high cost.”
In support of its recommendation against approving “immoral” or “offensive” marks, the GNSO notes that the United States also limits the federal registration of trademarks that are considered immoral or offensive.
However, taking this notion from U.S. trademark law and applying it to domain name registration is problematic.
In the U.S., even if you cannot register an offensive or immoral mark with the federal government – you may still be able to register with a particular state. If you cannot register with the state or the federal government, you can still use the unregistered mark to identify your goods or services.
In effect, the U.S. law regarding offensive trademarks only restricts the right to register those marks; it does not impose restrictions on the use of the mark. Otherwise there would be blatant free speech concerns.
Professor Christine Haight Farley of American University Law School states that
“the restriction of a generic top-level domain is more akin to the restriction on use than to the restriction of a federal trademark registration.
Because restricting offensive words in gTLDs would concomitantly restrict the ability of all speakers, commercial and non-commercial, ICANN should consider models outside of trademark law that better address the balance of speech rights.
Another GNSO recommendation states that “strings must not infringe the existing legal rights of others that are recognized or enforced under generally accepted and internationally recognized principles of law.”
The difficulty here is the sheer number of trademarks being used world-wide. According to Professor Haight Farley, there are over 100,000 trademarks registered in the U.S. each year, and there were 1,322,155 active registrations as of 2006.
And this is only registered marks. The U.S. also recognizes certain rights in state registered marks and common law marks that are not federally registered, which would make the numbers stated above even higher. Not to mention registered and unregistered marks in foreign countries.
Although this is not the sexiest of controversies, advocacy groups are beginning to line up in opposition to these proposed recommendations.
IP Justice, an international intellectual property civil liberties group, has launched a “Keep The Core Neutral” campaign and is currently circulating a petition to present to the ICANN Board.
The following websites provide more information on this topic: