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New Top Level domains and xxx-Domains: How to protect your trade marks

(PresseBox) (Koeln, ) ICANN's Board of Directors has approved a plan to usher in one of the biggest changes ever to the Internet's Domain Name System by approving the introduction of New Top Level Domains and the applicant guidebook. The Board vote was 13 approving, 1 opposed, and 2 abstaining.

During a special meeting, the Board approved a plan to dramatically increase the number of Internet domain name endings -- called generic top-level domains (gTLDs) -- from the current 22, which includes such familiar domains as .com, .org and .net.

"ICANN has opened the Internet's naming system to unleash the global human imagination. Today's decision respects the rights of groups to create new Top Level Domains in any language or script. We hope this allows the domain name system to better serve all of mankind," said Rod Beckstrom, President and Chief Executive Officer of ICANN.

New TLDs will change the way people find information on the Internet and how businesses plan and structure their online presence. Internet address names will be able to end with almost any word in any language, offering organizations around the world the opportunity to market their brand, products, community or cause in new and innovative ways.

"Today's decision will usher in a new Internet age," said Peter Dengate Thrush, Chairman of ICANN's Board of Directors. "We have provided a platform for the next generation of creativity and inspiration."

The decision to proceed with the gTLD program follows many years of discussion, debate and deliberation with the Internet community, business groups and governments. The Applicant Guidebook, a rulebook explaining how to apply for a new gTLD, went through seven significant revisions to incorporate more than 1,000 comments from the public. Strong efforts were made to address the concerns of all interested parties, and to ensure that the security, stability and resiliency of the Internet are not compromised.

ICANN will soon begin a global campaign to tell the world about this dramatic change in Internet names and to raise awareness of the opportunities afforded by new gTLDs. Applications for new gTLDs will be accepted from 12 January 2012 to 12 April 2012.

What will be for example Germany's next Top Level Domains? Strong, well-built and intelligent candidates enter the next round:

.berlin

.bayern

.saarland

.nrw

.koeln

.munich/.muenchen

.hamburg

.gmbh

.film

.reise

.versicherung

We will know more at 12th April, who has survived this round.

How to protect trademark holders?


Given the fact that many identical and similar trade marks exist in the world, a company - which does not want to get itself a New Top Level Domain- should check, if someone tries to apply at ICANN for a New Top Level Domain identical with his own name, containing its own name or being very similar to its own name. ICANN has announced that it will publish from mid-April 2012, all applications for New Top Level Domains at www.icann.org. After the publication everybody has only 6 months to appeal against the application of a third party for a New Top Level Domain, which might infringe trade mark rights.

ICANN demands, that the sponsors of New Top Level Domains introduce Sunrise phases for brand owners. There is now a discussion about what is a brand. Are only registered trademarks valid? Must trade marks be in use? Should also some types of unregistered trade marks be recognized?

Another way for trademark holders to protect themselves are "defensive registrations". "Defensive Registrations" have the great advantage to make it not only impossible for third parties to register domains that are identical to known brands, but prevent also the registration of domain names, which just only contain names of trade marks.



Given the complexity of the matter it is not surprising that the debate will continue. The Egyptian investment banker and ICANN Director Cherine Chalaby called ICANN's decision to give green light for the introduction of new Top Level Domains the "end of the beginning".

Before the decision about the New Top Level Domains ICANN has created already another new, controversial Top Level Domain: .xxx.

The xxx-domain -Wikipedia explains- is a sponsored top-level domain (sTLD) intended as a voluntary option for pornographic sites on the Internet. The sponsoring organization is the International Foundation for Online Responsibility (IFFOR) The registry is operated by ICM Registry LLC. The ICANN Board voted to approve the sTLD on March 18, 2011 It went into operation on April 15, 2011.

The xxx-domains entered its sunrise phase on 7 September 2011 at 16:00 GMT.The sunrise period of xxx-domains ends 28th October 2011. The Landrush period of xxx-domains will start 8 November till 25 November, and General Availability Phase of xxx-domains will begin on 6 December 2011.

The .xxx has been inspired by the former MPAA and BBFC "X" rating, now commonly applied to pornographic movies as "XXX".

A gTLD (generic top-level domain) for sexually explicit material was proposed as one tool for dealing with the conflict between those who wish to provide and access such material through the Internet, and those who wish to prevent access to it, either by children and adolescents, or by employees at their workplaces.

Advocates of xxx-domains, Wikipedia tells, argue that it will be easier for parents and employers to block the entire TLD, rather than using more complex and error-prone content-based filtering, without imposing any restrictions on those who wish to access it Editors of explicit content sites are also afraid that the use of a single gTLD like .xxx would also make it easier for search engines to block all of their content.

Critics of the xxx-domains argue according to Wikipedia that because there is no requirement for providers of explicit content to use the TLD, sexually explicit material will still be commonplace in other domains, making it ineffectual at restricting access, and simply creating a new "landrush" towards xxx-domains as registrants of .com domains hosting explicit material attempt to duplicate their registrations in the .xxx domain, competing with operators who hope to register desirable names unavailable in other TLDs. There is also concern that the existence of xxx-domains will lead to legislation making its use mandatory for sexually explicit material, leading to legal conflicts over the definition of "sexually explicit", free speech rights, and jurisdiction.

Sunrise B is the time when trademark owners and other IP holders can apply to opt-out of xxx-domains. This period will run for 52 days starting September 7, 2011.

Sunrise B is aimed at applicants from outside of the adult Sponsored Community. These applicants are owners of a qualifying trademark registration, who seek to reserve names in order to ensure that those names are not registered as domain names by others in .XXX . At the close of the Sunrise Period, if no conflicting application by a Sunrise A applicant has been made, these names will will be removed from the pool of domain names available for registration in future phases of the registry operation.

Some brand owners are wondering what costs there will be to protect themselves against unfair or malicious registrations in so many Top Level Domains.

Joseph M. DiCioccio and Susan Neuberger Weller explain:" In making a decision on how to deal with this new TLD, keep in mind that obtaining a defensive registration is a much more cost-effective method of preventing cybersquatting than is attempting to obtain the domain name later from a third party through, for example, the Uniform Domain-Name Dispute-Resolution Policy or the Anti-Cybersquatting Consumer Protection Act."

Hans-Peter Oswald

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