The ABCs of Working Groups
     The Names Council rejected Working Group C's proposal for the creation of six to 10 new gTLDs, even though it was one of the two issues on which the working group said it had found consensus.
     Among those who voted against the proposal were representatives from intellectual property and Internet registrars' interests. Trademark holders are concerned about the difficulty of trying to protect their trademarks from those who may register domain names that are confusingly similar.
     "The reality is that you won't get six to 10. You won't get that large of growth. The politics of that won't let it happen," said InfoNetworks Chief Information Officer Mike Palage, chairman of the Names Council's Working Group B, which is focused on ways to protect trademarks in the creation of new gTLDs.
     Palage said he believed that some of the registrars, those accredited to register top level domain names, voted against the proposal because of the power of trademark interests.
     Palage and others say it is more likely that ICANN will propose three new gTLDs at the most. This could include one open gTLD, one chartered group available only to members of a particular industry or segment, and a non-commercial gTLD.
     Michael Heltzer, government relations manager for the International Trademark Association (INTA), said his group would like to see the initial number of gTLDs limited to two or three at the most. While some say that's not enough, Louis Touton, ICANN vice president and general counsel, noted that the trademark interests at one point resisted the creation of any new gTLDs.
     "We're pleased that the Names Council recommended a measured and responsible approach to the introduction of new gTLDs," Heltzer said.
     But those who favor the rollout of many gTLDs say limiting their deployment will encourage, not reduce, cybersquatting, the practice of obtaining a famous domain name in bad faith for the purpose of selling it for a profit. Introducing a limited number of new gTLDs will encourage speculation, they argue.
     "A small number creates a real land-rush dynamic where people don't know when the next one" will be introduced, said Michael Froomkin, a law professor at the University of Miami.
     Froomkin and others say that ICANN should not place artificial limits on new gTLDs.
     "There may be only a demand for 10 or 12 (new gTLDs), maybe only for three," said Milton Mueller, an information studies professor at Syracuse University. "The question is how do you decide who gets them and which ones they are. It should be an open-market process."
     Some say that if ICANN fails to provide enough new gTLDs to meet public demand, more people may turn to using country code top-level domains (ccTLDs) such .tv, which was licensed to an American Internet television concern by the small Pacific Island of Tuvalu.
     "If there's not (enough) new gTLDs, people will start tapping into ccTLDs," said Eric Menge, associate chief counsel for telecommunications in the Small Business Administration's Office of Advocacy.
     Heltzer argues that even if there are more domain names that doesn't mean that trademark holders should have to put up with any degree of trademark abuse.
     "Trademark owners should not have to sit still and see someone else capitalizing" on their trademark, he said.

What's In A Name?
     But even before it can move forward on new gTLDs, ICANN must decide how to proceed on calls to install some protections for trademarks in connection with the introduction of new gTLDs.
     A drive to create a list of famous trademarks that would be used to reserve domain names for trademark holders appears to be losing steam. In its report released last week for public comment until May 10, Working Group B outlined five approaches to the issue. Palage said he is hopeful that at the very least there will be a majority vote on one of the proposals before the Names Council makes its recommendations to the ICANN board.
     Registrars and intellectual property constituencies are pushing a "sunrise" plan that would allow any trademark owner, regardless of whether their mark is famous, to register their trademarks as domain names on a first come, first served basis in a new gTLD for a limited time before it is opened to the public. They also could register up to 20 variations on their trademark.
     "Unless we have protections in place…there is going to be cyber squatting and consumer confusion," Heltzer said. "It's not about the big guy vs. the little guy. There are almost 1million marks at the (U.S. Patent and Trademark Office). Not all of them are owned by huge conglomerates."
     The proposal, however, has been criticized by non-commercial interests and others, who argue that it would greatly expand trademark rights.
     "It's such a transparent power grab," Froomkin said. "It's absurd. There's no basis in law."

Next Steps
     Touton said ICANN's staff will begin the process of drafting broad parameters for the establishment of new gTLDs. While he expects the staff will propose guidelines on a specific number of new gTLDs, Touton said the staff would not outline specific gTLDs. Instead it likely will seek input from those who will be charged with administering the new gTLD registries, a proposal the Names Council recommended. Touton said ICANN's staff would use this input to help draft a plan.
     ICANN's board has said it would like to vote on new gTLDs at its July board meeting in Yokohama, Japan. When asked why ICANN doesn't put off the issue for consideration by the board after the election of new members later this year, Touton said "there's pretty strong consensus that there ought to be new gTLDs. Even the trademark people have supported that notion."
     Touton said "there are probably overblown assertions on both sides" from those who argue that the number of names in .com, .net and .org are running out and those who fear new gTLDs will create huge problems for trademark owners.
     Users, however, most likely will not be able to register domain names in any new gTLDs before the end of the year, if not later, Touton and others said.
     Network Solutions Inc., the company that has exclusive control over the .com, .net, and .org gTLD registries, made an 11th hour proposal last week to the Names Council for the creation of at least two specific new gTLDs, .shop, an open gTLD, and .banc, a chartered gTLD reserved for non-profit interests associated with the global banking community. NSI has proposed that it and the other registrars run .shop cooperatively.
     "What we're proposing is something concrete rather than continued discussion," said NSI spokesman Brian O'Shaughnessy.
     Ken Stubbs, a key member of the Names Council and chairman of the Internet Council of Registrars executive committee, praised NSI for "at least stimulating a more (elaborate) line of thought." But whether the other registrars will rally around NSI's proposal remains to be seen.
     But Mueller and others are suspicious of the proposal, saying it appears designed to help NSI, which up until last summer was the sole registrar of gTLDs, maintain its dominant position in the domain name system.

- by Juliana Gruenwald