It is NOT Too Late to Protect Your Business From New gTLDs ...

The deadline for applying for a new generic top-level domain has passed and the applied-for-gTLDs have been posted, but you still have opportunities to protect your mark and do your due diligence to protect your business from the new applied-for-gTLDs.

Application submission for new gTLDs closed on April 12, 2012, and on June 13, 2012, ICANN revealed 1,930 applications for new gTLDs.? Even though the time has passed to pro-actively protect your mark by applying for a new gTLD there are a number of defensive actions you can take to protect your mark in addition to the protective measures inherent in the application and evaluation process.

Inherent Protective Measures

ICANN has published a ?gTLD Applicant Guidebook? (?Guidebook?) that was most recently updated on June 4, 2012.? The Guidebook includes a number of barriers to keep potential cyberpirates and cybersquatters at bay.? First, applications from individuals or sole proprietorships will not be considered; established corporations, organization, or institutions in good standing may apply for a new gTLD.? In addition to the limitation on who can apply, ICANN does background screening in the areas of history of cybersquatting behavior and criminal history.? Another barrier is financial; the total application fee costs $185,000, which is due to complete an application and for evaluation to begin.

Defensive Actions You Can Take

Once gTLD applications are submitted to ICANN, they will pass through multiple stages of process.? These stages include the comment period, initial evaluation, extended evaluation, dispute resolution, string contention, and transition to delegation.? Trademark owners, in addition to applying for a new gTLD, can protect their intellectual property by making formal and informal objections during the evaluation process prior to delegation of a new gTLD.

Informal Objections.? From the time the applications are publicly posted, ICANN will open a comment period for the community to review and submit comments on posted application materials.? Anyone may submit a comment.? Comments received within a 60-day period from the posting date will be available for consideration to the evaluation panels performing the initial evaluation reviews.? Comments received after the 60-day period will be stored and available for other considerations, such as the dispute resolution process.? Comments may be relevant to an evaluator?s task of determining whether the applications meet the established criteria and are not formal objections.? By making comments, trademark owners hope to inexpensively raise a flag for potential trademark infringement and that the applicant voluntarily withdraws the application.

Formal Objections.? The formal objection process was created to consider objections based on certain limited grounds outside ICANN?s evaluation of applications.? The formal objection period will last for approximately 7 months (until mid-November 2012) from the time the applications were publicly posted.? Objections are limited to the four following grounds:

String Confusion Objection ? new applied-for gTLD string is confusingly similar to an existing TLD or another applied-for gTLD.

Legal Rights Objections ? new applied-for gTLD string infringes the existing legal rights of the objector.

Limited Public Interest Objection ? new applied-for gTLD string is contrary to generally accepted legal norms of morality and public order that are recognized under principles of international law.

Community Objection ? new applied-for gTLD string may explicitly or implicitly target a community of which a significant portion objects.

Conclusion

Even if you are not a large corporation, like Microsoft, Amazon, and Apple, who has the resources to apply for a new gTLD, the protections safeguarding against cyberpirates and cybersquatting may not be enough to protect trademarks.? With the delegation of new gTLDs, domain name registries will sell domain names containing the new gTLDs, like ?.corp? and ?.sucks,? of which cybersquatters and cyberpirates are sure to purchase.? With the delegation of potentially a thousand new gTLDs for each round of gTLD applications, it will become increasingly difficult for trademark owners to police its trademarks and enjoin infringing domains.? The earlier you get involved and attempt to resolve potentially infringing domain names, the better you will limit your costs and nip further branches potential infringers to monitor and enjoin.

In short, trademark owners cannot ignore ICANN?s new gTLDs.? Developing a plan and acting as soon as possible will limit the costs and effort in policing their marks.

Contact the Filutowski Law Firm if you need any assistance with protecting your business.

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Copyright ? 2012 The?Filutowski?Law Firm, PLLC. ??Disclaimer:?This page is intended for general information purposes only and should not be construed as legal advice or legal opinions on any specific facts or circumstances. ?An attorney-client relationship is not created or continued.

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