Bonfire of the brands: ICANN's top-level domain selloff
Is small biz priced out of the market?
Despite what in the final months seemed to be stiff competition, ICANN went ahead with its new generic domain names, letting companies register .whatevertheycanthinkof from 12 January.
The generic top level domain names, or gTLDs, are something that ICANN has emphasised are necessary to let more businesses onto the net in what it's calling a "dramatic expansion" of the online world.
Until 29 March, companies and individuals can apply to register pretty much any .address they like, with obvious possibilities being brand names such as .cocacola or locations like .london.
The process took six years to come together, but it was only in the final few months that any loud objections started to be raised, mostly around trademark infringements and the possibility of online fraud.
In the run up to the launch, ICANN often griped that people had those six years to discuss the new system, but Deborah Sweeney, a lawyer and CEO of My Corporation, told The Register it was pretty typical for businesses to wait until the last minute to realise the impact of policy changes.
"There has been plenty of time, with each new release there's discussion, but I think that really people don't take heed until there's this big press and we're getting notices that as business owners we have to buy new TLDs in order to protect our brands," she said.
"I think that it's like anything, when the reality hits, it becomes that bit more problematic and people really start discussing it."
Since the gTLDs aren't free (more like up to $185,000 a pop), it's difficult to imagine cyber-crooks taking to ICANN en masse to try to register existing company names in an effort to make some money, especially since they're likely to be found out sooner or later.
As with so many arguments, what this really comes down to how much involved parties are going to lose, or make, from the process. ICANN wants to make some more cash by selling gTLDs and businesses don't want to have to spend their readies on protecting their brands.
"There's an opportunity for ICANN to register more domain names with the gTLDs so there's this desire for them to open up business lines for itself and for registrars, for which there's revenue – and so they continue to proceed, " Sweeney said.
However, she does see the logic behind ICANN's desire to expand online domains.
"I think the way ICANN's looking at it, which is arguably a reasonable presentation, it's about them opening up the market for new businesses to come in and compete and having new TLDs available," she admitted. "I guess it's like getting a new home, if the market is already full and everybody's occupying the homes then there's nowhere left for you to move to."
But her business is already counting the cost of the move.
"We bought 12 gTLDs and then you've already bought .com and .net and others," she said.
ICANN has said that there's no real need to buy gTLDs defensively – ie, to prevent other people from buying them – because there will be "trademark protection mechanisms" in place to defend brands.
This is the new Uniform Rapid Suspension (URS) system, which, as the name suggests, is supposed to be a quicker way to get trademark-infringing websites offline.
"URS is designed to provide a faster, cheaper option for suspension of infringing names – designed to create less risk in not registering everything defensively," ICANN told The Reg.
Whether or not it will be rapid, the system is by no means free; any objection filed over a domain name, within URS or otherwise, will have a non-refundable fee attached.
The main reason that companies buy domain names defensively is so that they don't have to go through the time-and-money-consuming process of trying to legally prove trademarks.
When you think of obvious brand names such as Coca-Cola, you can't imagine it would be difficult, but the legal niceties can be surprisingly tangled.
Sweeney takes her own company as an example:
Our business name is MyCorporation and we have a trademark on that and we of course use my corporation.com as our primary method of working with customers.
But we also own mycorporation.net and when .xxx came out, we paid attention and realised we should really buy all of these new TLDs because our competitor could come in and buy it and just make it difficult for us to get it back.
If, for example, they put up a disparaging site then it's more obvious, but if they're just holding the domain name or say they even start selling corporations and then they say we're just selling corporations and we call it My Corporation, then they start disputing the benefit or attributes of our trademark and it becomes complicated.
We're proactive in buying new TLDs because we don't want to go through that battle and the arguments we'd have to make.
There can be additional confusion when the trademark isn't quite so obvious or it overlaps with someone else's trademarks.
"If McDonald Douglas came in and bought .mcdonalds, then McDonalds the hamburger store would be upset," Sweeney pointed out. "Sometimes trademarks aren't just attributable to one brand or business."
Companies were given the opportunity to snap up brand-related gTLDs in advance, providing of course they could prove their trademark. If the trademark was on a more generic name or a shared brand, then you weren't entitled to buy it.
Do not sell
A solution proposed by the US Association of National Advertisers, a vocal opposition to the gTLDs since they were finalised in June, was a "do not sell" list, a list of brands and trademarks that is kept by ICANN so companies don't have to buy up every iteration of the name on the list.
"Proposals for certain types of reserved lists or similar ideas have been discussed previously in the community – an example of one of the complexities raised here is the difficulty of developing objective global standards for determining which trademarks would be included on a list," ICANN explained.
"The question seems to assume that there is only one rights-holder that would be relevant to a given domain name - however, recall that the same term can be a trademark for more than one class of goods or services, and in more than one country."
So, wait a second, the list doesn't work because trademarks are difficult to deal with, but the objections system is going to be rapid?
What seems more likely is that the system will work well in clear cases, but if your company name is at all ambiguous, you'd be better off buying defensively, which leaves those with shallower pockets with a tough decision, pay up to $185,000 now for a gTLD or face unknown legal costs later.
The problems don't end there either. One issue that Sweeney flagged up hasn't received much attention, but could prove a big hindrance to the SEO-uninitiated: Google doesn't like companies to have multiple websites.
"Google can blacklist your business if you have multiple sites directing back to your business, so if I did mycorporation.xxx and it was still us behind the scenes but I presented a whole new site, then really it's like I'm trying to get two listings on Google, mycorporation.com and mycorporation.xxx, for the same underlying business, and Google does not look fondly on that," she said.
Businesses with multiple domain names need to do a simple redirect to the same site, so you don't have multiple sites for one business, but multiple addresses for one site, a nuance that companies without SEO resources might not know about.
"When you're talking about big business, it's not that big a deal, but when you're talking about smaller companies and they're trying to protect their brand, then they have to proactively buy those domain names... for smaller businesses, it's not inexpensive," Sweeney said. ®