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Brand management in the internet age: new options, new concerns

Starting in 2012, the Internet Corporation For Assigned Names and Numbers (ICANN) began to revolutionize the internet with the release of a vast number of new top-level domain spaces. While most attorneys, and indeed the general public, are familiar with many of the commonly-used TLD spaces (e.g., .com, .net, .edu,), with the launch of well over one thousand new spaces (available in the near future), simply registering your client’s business name in one or two extensions may not prove sufficient to reach their target audiences. And, perhaps more importantly, failing to understand the nuances of domain name law sufficiently well to protect their brands from cybersquatters or online counterfeiting shops may land you in a difficult position in years to come.

Domain names are increasingly becoming valuable business assets, the portal through which your clients reach a larger and larger portion of their customers as people become more reliant on online resources. According to Verisign, over 294 million domains are currently registered, a 6.5% increase from 2014; the internet is the business of today. Selecting the correct website (or sites) to showcase your client is a tricky business, requiring not only the calculated choice of instantly recognizable, easily remembered strings, but also the decision as to which TLDs to register in, and which to leave aside. In order to navigate these options, you must become familiar with the registration policies of the various spaces; which are designated for open use, and which are restricted to a select group of individuals or companies. If a suspected cybersquatter employs your client’s name, you must be aware of which dispute resolution mechanisms are at your disposal, and whether your client will qualify as a registrant in the space in order to receive a transfer should your case prove successful.

Image: ‘The Ring of ccTLDs #3’ (Country-Code Top-Level Domain), Photo by Grey Hargreaves, CC by 2.0, via Flickr.

An added consideration are the country-specific domains, which in recent years have skyrocketed in popularity. Each country has a designated code, assigned to the root zone by the Internet Assigned Numbers Authority (IANA), and each nation has the right to determine the registration requirements, restrictions, and dispute resolution mechanisms for its space. Although generally less well-known than the generic top-level domains (gTLDs), many of these country-code top-level domains (ccTLDs) are highly popular within their geographic or demographic scope. Although .com is still globally the most highly-utilized space, the both .tk (Tokelau) and .de (Germany) outrank the next most popular gTLD space, .net. If your client conducts business overseas, or has a well-known online presence, it is essential to take ccTLDs into consideration.

It is worth mentioning in this context that both ccTLDs and the new gTLDs covered by ICANN’s launch have the potential to employ non-ASCII characters. This means that even the TLD extension, not just the domain string, may be written in non-English scripts. In ICANN’s latest application round, scripts ranging from Russian to Chinese and Hindi to Arabic were requested, many of which have already been delegated.

To date, 722 of the new gTLD spaces have been delegated, meaning that a whole panoply of new options are now, or will soon be available to your clients. With more choices, however, come more concerns in terms of monitoring and protection. You and your clients must decide whether to adopt an aggressive protection strategy or to maintain defensive registrations (to prevent their use by unauthorized third parties). Developing a consistent, effective approach is essential to good domain portfolio management.

But it is difficult to get a handle on all of these new practices. ICANN’s launch process was a complicated affair, even for industry regulars, and like any specialized area of law domain names employ their own (often highly confusing) jargon. When faced with a series of cyberquatters in unfamiliar spaces, the task of sorting our your client’s options and available remedial methods can feel overwhelming. Few centralized resources exit to assist less-experienced counsel in locating the correct policies and procedures, not to mention the wide array of new protection mechanisms specific to the recently-released gTLD spaces. These include the Trademark Clearinghouse database for registered marks, the Uniform Rapid Suspension mechanism, the Public Interest Commitment Dispute Resolution Mechanism and the oversight process for ICANN Accountability, all of which are recent additions to the domain name legal landscape with the new TLD launch.

Featured Image Credit: ‘Mouse, Startup, Notebooks’, Photo by StartupStockPhotos, CC0 Public Domain, via Pixabay.

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