There has been a great deal of press lately surrounding ICANN’s planned implementation of a new system that will allow entities to create their own generic top level domain names (gTLDs). If you are already familiar with the details of the new gTLD system, skip down to here, otherwise read on.
The Internet Corporation for Assigned Names and Numbers (ICANN) began working on a proposal for a new gTLD system several years ago that would supplement the existing collection of gTLDs with which we are all familiar., i.e., .com, .net, .org, .info, etc. Following multiple drafts and several periods of public comment, ICANN’s Board of Directors approved the new plan on June 20, 2011. This plan opens the Internet naming system to private groups by allowing them to create their own gTLDs, including branded domains (.canon, .IBM), generic domains (.ski, .shop), and cultural brands (.gay, .irish), among others. Unlike the present system, the acquisition of these new gTLDs will carry substantially greater hurdles to those who wish to obtain them: the cost alone of applying for such domains — $185,000 — will present a barrier to most small entities.
In addition, the new domain system requires applicants to undergo an examination phase, similar to the U.S. trademark application process, through which the applicant’s right to register a given domain name will be reviewed and interested third parties will be provided with the opportunity for protest. ICANN hopes to minimize the impact upon trademark rights and reduce opportunities for cybersquatting through this process.
Finally, successful gTLD applicants must have the infrastructure to administer a domain name registry, because creating a new gTLD is only the first step: applicants must also be able to manage second level domains tied to their gTLDs. For example, if Canon, Inc. registers .canon as a TLD, it must also be prepared to administer that domain, that is, to provide registrations for domains like support.canon, research.canon, etc., to those who seek such registrations, both internally and externally. And in managing those domains, new gTLD owners will have to create and administer a rights-protection mechanism for third-party trademark holders.
The purpose of ICANN’s plan, ostensibly, is to “promote competition in the domain name market while ensuring Internet security and stability.” Whether that rather vague directive can be achieved remains to be seen.
The new gTLD application process will open in January 2012, just a few months from now. Ahead of the impending application period for new gTLDs, there has been no shortage of criticism in the media about ICANN’s plan. Most of that criticism centers around two perceived issues, namely the enormous cost to brand owners who feel bullied into participating in the new system, and the potential litigation that may accompany the trademark issues surrounding the new domains.
There are certainly points for very interesting discussion in relation to both of those concerns. From a trademark standpoint, for example, clashes between like-named corporate entities such as Delta Airlines, Delta Dental, and the Delta Faucet Company are assured. Why settle for .deltafaucets when you might obtain simply .delta? Why choose .dovechocolate when you might be able to obtain .dove, to the chagrin of Dove soap manufacturer Unilever?
Likewise, the enormous cost of applying for and maintaining a registry for a new gTLD will not only increase marketing investments born by companies and their shareholders, it will also effectively push First Amendment speakers off of the domain name platform. Specifically, the low cost of registering traditional second level domain names for the purpose of critical speech and parody (e.g., http://www.walmartsucks.com and http://www.stopBP.com) has historically placed First Amendment speakers on equal footing with their targets, because such domain names can be acquired easily and inexpensively. Under the new gTLD system, however, there will be far less opportunity for such speech, as costs are exponentially higher and the burden of administering a domain name registry will be beyond the average Internet user’s capabilities.
Notwithstanding the validity of these concerns, I think the real fly in the ointment is the view from 10,000 feet. Little attention is being given to the impact that ICANN’s new system will have on the quiet battle taking place between the domain name system and search engine operators like Google, a subject that I discussed at length in my recent article (shameless plug alert!) Fifteen Years of Fame: The Declining Relevance of Domain Names in the Enduring Conflict between Trademark and Free Speech Rights, 11 J. Marshall Rev. Intell. Prop. L. ___ (forthcoming 2011).
Presently, an Internet user who seeks to locate a website can rely upon either type-in search, or a search engine to find that site. Type-in search is a kind of trial-and-error approach: a user looking for information about the hours of operation of the local Red Lobster may simply guess (correctly) that typing RedLobster.com into a browser address box will reach the desired website. A less certain user might type “Red Lobster” into a search engine search box and be provided with a list of search results, first among them RedLobster.com. Users are less likely to experiment with type-in search when the result is less certain. Is it DeltaAirlines.com or simply Delta.com? A user may save time by typing “delta” into a search box.
Google not only counts on this trend toward reliance upon search engines, it cultivates it. For example, the Google Chrome browser features an “omnibox” — a single box that will accept user input consisting of either domain names like delta.com or ordinary language like “delta.” Presented with the latter, the Chrome browser will take a user to a list of search results related to “delta.” Likewise, those search results tend to visually de-emphasize the domain name addresses associated with the websites listed in favor of plain language titles and descriptions of the listed sites. In this manner, users become accustomed to viewing search results and less attached to domain names.
There is no mystery as to why Google does this: revenue. Google inserts itself, albeit briefly, between the user and a desired website like RedLobster.com, in the hope that the user will occasionally be drawn to click on adjacent click-through advertisements, which Google sells to its advertising partners, for enormous profit. In effect, Google hopes that you tune in and don’t get up during the commercial.
The main argument against Google’s approach to locating a website is one of efficiency: why should a user be presented with more information than desired, in the form of both organic and paid search results? If a user knows or can accurately guess the correct domain address, then the extra step implicated by a search engine is extraneous. However, the argument in favor of using search engines over type-in search is identical: efficiency. Internet users can quickly become skilled at using Google’s search engine, and Google’s search engine algorithm can actually learn from its users search habits. The user need only become proficient at predicting how best to satisfy a single entity — Google — rather than guessing how an infinite number of domain registrants will choose to position themselves on the World Wide Web.
In my view, ICANN’s new gTLD plan will create a kind of dilution of the domain name system, not unlike the toll-free area codes that were introduced in the 1990’s to supplement the previously dominant 800 area code. In permitting the addition of potentially thousands of new gTLDs to the current domain name system, ICANN may actually alienate Internet users and push them more firmly toward reliance upon search engines. A user confronted with the choice of typing delta.com or deltaairlines.com, presented with the additional possibility of .delta, may simply admit defeat and choose to type “delta” into a search engine box. In the grand scheme, perhaps this is not an awful development. Search engines are a bit like phone books peppered with advertisements: they offer a free (to consumers) service that is easy to use at the cost of a few potential distractions. The alternative is memorization and/or trial and error, which is either impractical or impossible.
However, the likely outcome of this trend will be a whittling away of the power and relevance of the domain name system, and perhaps more significantly, the transition of that power into the hands of private search engine-operating entities like Google and Microsoft. While I recognize the potentially frightening implications of that transition, I am less concerned about the mishandling of that power than I am about the investment that ICANN is making and is asking others to make in order to bring its new gTLD plan to fruition. I believe that it is a plan which will ultimately provide little benefit to the public.
It is hard to say whether the domain name system as a whole is worth salvaging. In an era of rapidly evolving technology and correspondingly evolving law, we may one day regard the domain name system as an ephemeral tool akin to dialing the operator to ask for an extension. In the meantime, I believe it would be wise to tread carefully in how we invest in improving that system.