Convergence and Incongruence: Trademark Law and ICANN's Introduction of New Generic Top-Level Domains

Abstract

This paper demonstrates how problematic convergences between Internet technology, the demands of a burgeoning e-market and trademark laws have created myriad issues in international governance of domain names. The Internet Corporation for Assigned Names and Numbers (ICANN), the body that governs internet's infrastructure, recently approved a new policy that would allow it to accept applications for additional generic top-level domains (gTLDs). What ICANN contemplates is a uniform system to approve generic top level domains that is expected to have profound implications. Under this new plan anyone can apply for a new gTLD at any time and it could be literally dot anything. However, the new gTLD policy imports certain concepts and doctrines from trademark law that will result in long-term problems both for domain name policy and for trademark law jurisprudence. A major problem with this policy is that it equates domain names with trademarks as legally protectable properties. But they are not equivalent. While ambitiously trying to resolve some of the most problematic information ownership issues in e-commerce, ICANN has not carefully considered the appropriateness of importing trademark law concepts into domain name policy.

Keywords: trademark, domain names, convergence, internet governance, intellectual property, gTLD, treaty, ICANN