New gTLDs – Pandora's Box is open

Abstract

In a world with over 1.6 billion Internet users, the expansion of generic Top-Level Domains (gTLDs) continues to be a key issue for legal right holders and Internet users generally. Originally, expansion of gTLDs was largely motivated by the recognition that there is a conflict between domain names and trademark owners with similar marks, which belong to different geographical locations, or to different goods and/or services classification. This expansion has, in the past, been relativity ‘controllable’. However, in June 2008, the board of the Internet Cooperation for Assigned Names and Numbers (ICANN) approved the concept of introducing new gTLDs in unlimited numbers. This development is significant to legal right holders in many ways, and is expected to create further controversy in an unsettled area of law, that of property rights over domain names and their relationship with other legal rights. This paper reviews the manner in which ICANN is handling the expansion of gTLDs from a legal right holders' perspective. The paper will examine the application of the Uniform Domain Name Dispute Resolution Policy (UDRP), arguing that over the past 10 years the UDRP has exhibited significant inconsistencies in the making of decisions and that the issues of interpretation of the policy and the use of precedent can only be resolved by a unitary appeal procedure. ICANN's new proposal of introducing a Uniform Rapid Suspension System (URS) is still pending consideration and it is unknown at this juncture whether this will be used in conjunction with the UDRP or otherwise.