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[author: Dan Kelly]
In case you did not yet hear the news, ICANN at long last revealed this week the new applied-for strings in the new gTLD program. If you are unfamiliar with what this is, ICANN will be expanding the number of available so-called ”generic” top-level domains (gTLDs) for use in Internet domain name addresses. A top-level domain is the thing to the right of the dot, like .com, .net, and .org. A “generic” TLD is principally distinguished from the two-letter “country code” TLDs, like .us, .ca, .uk, etc. (“ccTLDs”). There are twenty one gTLDs right now — here’s some background from Wikipedia. Prior DuetsBlog coverage is here.
I have finally perused the entire list of 1930 newly applied-for gTLD strings (online here, statistics here), and there are many, many interesting things to discuss. First of all, as a trademark attorney, I see an issue bubbling up with respect to the category name “generic” top-level domain. The revealed list of strings includes numerous well-known brands that have been applied for by their owners. There is nothing generic about most of these “branded” strings, particularly if they are associated with a company selling goods and services under the relevant brand. Most people familiar with the new TLD process and trademarks will be able to distinguish the meaning of “generic” in the context of a TLD, but this is a good example of how this push for new TLDs has already outstripped its own lexicon. Words matter, and we need a new word for these TLDs, or we need to distinguish between “branded” TLDs and truly “generic” TLDs — words like ART and STORE and TEAM. The new TLD process itself already distinguishes between “community” and “geographic” TLDs.
Secondly, I continue to wonder about the viability of new TLDs on a practical level. For instance, did you know that .jobs has been a TLD since 2005? Have you ever surfed a .jobs website? How about a .pro site? Been to a .coop site? I didn’t think so. These generic TLDs have been around a while, and I assume each has made its own marketing push, but it seems to me that none of them have taken off. Perhaps the new TLD effort will finally shake us all out of our .com paradigm, but it is probably going to take major marketing efforts to do so. In that regard, some of the new branded TLDs might finally break the mold. Advertising will have to whet people’s appetites to surf beyond .com, and my bet is on domains like .nike, .mcdonalds, .apple, and .google, to name just a few.
Third, it is really interesting to compare the approaches of several large companies in the new TLD process. It appears that Apple applied for only one TLD: .apple. In contrast, it appears that Microsoft applied for eleven TLDs, Amazon applied for about 76 TLDs, and Google applied for more than 100 TLDs. (I say “appears,” because it seems that some companies used proxies, agents, or subsidiary or related companies for their applications, so my counts are based on obvious identifying information in the list.) Perhaps these differences can be accounted for in the different business models and focus of each company, but clearly Google and Amazon are betting on the new paradigm much more than Apple and Microsoft. There is much more to say about these four companies alone in light of this data, perhaps in a future post.
I think that the most applied-for string was APP, with thirteen applicants for that string, including Amazon and Google. It appears that neither Apple nor Microsoft applied for it. Recall that these latter two companies are currently fighting about Apple’s attempt to register APP STORE as a trademark.
Also, as an assurance that the First Amendment is alive and well, there are three applications for SUCKS.
And the creepy award goes to Google, which applied for the following strings: BABY, DAD, DOG, FAMILY, HOME, KID, and MOM, among many other generic and proprietary strings (way more generic than proprietary).
Last but not least, rights holders should LOOK NOW at both the list of strings and at the various responsive procedures available. First, public comments can be made now though August 12, 2012. Second, there are a number of formal objection procedures, all of which I believe are scheduled to run from now through January 13, 2013. Here is a good, succinct overview of the formal objection procedures, and many details are in Module 3 of the Applicant Guidebook. These formal procedures include objections based upon legal rights (i.e. registered or unregistered trademark rights, among others), and I recommend filing sooner rather than later, given the many hiccups in the new TLD processes so far.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
© Winthrop & Weinstine, P.A.
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