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As ICANN introduces new generic top level domains (gTLDs) and separates itself from US oversight, it has the opportunity to distance itself from the taint of cybersquatting, brand abuse, and criminal activity involving domains. Establishing a new norm for disputing and resolving disputes would demonstrate leadership and ICANN’s ability to regulate itself on behalf of the greater good.
To underscore the scope of the issue, consider this research on just 30 top Interbrand-ranked global brands. The most recent MarkMonitor Brandjacking Index™ found cybersquatting incidents increased over 40% in the last year for the brands that were studied; these leading brands suffered as many as 15,000 incidents per brand. With each Uniform Dispute Resolution Process (UDRP) incidence costing over $7,000, the total cost of remedying these infringements would be well in excess of $3 billion for only 30 brands. In fact, the total scale of the problem is much greater.
Our brand holder customers have long since reached fatigue over this level of abuse and the direct and indirect costs associated with it. Remember, even in a UDRP victory, these brand holders must pay the domain registration fees in perpetuity to keep that domain out of the hands of others, whether or not there is a good reason to own the domain. Because of the cost and trouble, fewer than 3,000 UDRP actions were filed last year.
With the introduction of ICANN’s new generic top level domains, brand holders are threatened by even more profound abuse against these same brands across hundreds or thousands of new domain extensions. It is time to be creative in looking for a solution that protects brand holders and the public from the threat of escalating abuse.
We can find good examples in examining how other types of Internet abuses are handled. In the case of phishing abuses, ISPs, domain name registrars and registries often cooperate to take down phishing URLs and domain names quickly, without resorting to the UDRP or other legal procedures. Law enforcement does not need to be involved directly in these administrative procedures. For online copyright infringement, the Digital Millenium Copyright Act (DMCA) procedures are successfully used by rights holders to take down infringing content. For those fighting online counterfeit sales, programs such as the eBay VeRO (verified rights ownership) program serve as models to provide “self-help” mechanisms to brand holders to quickly take down infringing auctions.
These procedures serve two useful functions– (1) giving brand holders a reasonably effective remedy for online infringement, and (2) minimizing the risk of litigation directed at those ISPs, websites or other third parties that enable online abuse.
Brand holders know that the UDRP and traditional sunrise period procedures are not and will not be sufficient in an era of hundreds or thousands of new domain extensions. Now, with the launch of the new top level domains, is the time for ICANN to give brand rights holders new, meaningful protections that also protect consumers and legitimate users.
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Actually, the DMCA is effective for taking down content whether it is infringing or not. All the rights holder needs to do is allege infringement. The use may not actually be infringing under the doctrine of fair use, for example, but most of the large profit-oriented rights holders who purchased this law in the first place tend not to take a balanced view of the situation. Similarly, I hear that a popular use of eBay’s anti-counterfeit mechanism is for software companies to circumvent the doctrine of first sale on the basis that their EULAs prohibit it.
If we were to apply the same kind of process to domain name take-downs, the abuse—sorry, over-zealous application—of this mechanism by Trademark holders would be rampant. Trademark lawyers are accustomed to shooting first and asking questions later thanks to the doctrine of dilution. The consequences of taking down an entire domain are potentially far more serious than the consequences of taking down individual copyrighted works. The potential for abuse of the system by issuing fraudulent take-down notices would also be serious unless properly held in check.
This is an area where trademark interests should fund some research. The domain name system, like most aspects of the Internet, was not designed to cope with adversarial participants, yet that is the situation in which we find ourselves. The problem is one of brand owners wanting to be found by those that seek them, and domain names aren’t necessarily the best tool for this job even under ideal circumstances. No amount of legislation will change this fact. We should research an entirely different model of concept-to-entity mapping, starting with investigation into how people think about brands. If a user can provide such a system with the facts that he knows about the brand (or other identity concept), and the system can aid in singling out the right entity, then the final step can map to a domain name. By that stage it won’t matter whether the domain name is “obvious” or “meaningful” or not.
In short, the domain name system is not designed to handle the stress of conflicting semantic interests. Design a layer that sits above the domain name system—a directory system, basically—that aids people in locating the right identity, thereby relieving the domain name system of this stress. (Yes, I’m aware that directory technologies already exist, but they aren’t currently filling the role described here. Are they actually suited to it? Research is required.)
This puts it in plain English for marketers and brand managers who need to stay on top of this. Even my own domain, marketing-consigliere.com, while not by any means a big brand, needs to be considered in light of this upcoming reality in 2009.