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How to Lobby the Internet

BY Nick Judd | Monday, October 31 2011

Beginning in January, anyone with the know-how to run a domain name registry, a $185,000 application fee and the time ride out a lengthy application process will be able to apply to run their own top-level domain, essentially promising to maintain a slice of Internet namespace.

The Internet Corporation for Assigned Names and Numbers — ICANN, the multi-million-dollar nonprofit that manages, in a ten-thousand-foot-view sort of way, the mechanisms through which computers on the Internet find one another to communicate — advertises the opening-up of generic top-level domains, as they're called, as a new opportunity for the Coca-Colas and perhaps the Barack Obamas of the world to stake out their intellectual turf. In addition to existing TLDs such as .com, .net and .org, ICANN will in January start accepting applications for pretty much any other TLD — ranging from .anything to .zebras.

The Association of National Advertisers opposes this idea, saying it will create problems and create unnecessary cost for brand owners. The problem for ANA, as reported by AdWeek's Katy Bachman, is that ICANN is a non-profit with global reach, not an entity of the federal government. This makes the corridors of power a little more difficult to navigate, it seems.

"In order to protect its existing brands from becoming gTLDs, a brand owner must either invest time and money to have it classified as off limits or to purchase a gTLD with the brand name," reads a memo drafted for ANA by their counsel, New York-based Reed Smith LLC. "Unique brands like Coca-Cola will presumably be able to prevent anyone else from applying for .cocacola. But Apple Computers will not be able to prevent someone from owning .apple."

The ANA memo, drafted by association counsel Douglas J. Wood of Reed Smith, specifically calls out the curious case of Whitehouse.com, which, for a period of time, served up pornography. The website, one TLD down from the official WhiteHouse.gov, now appears to have a placeholder page serving up links with little or nothing to do with the federal government.

From the memo:

Domain registrants on the top-level or second-level domains will register closely associated names to brands in hopes diverting traffic that was destined for the legitimate brand owner. Take, for example, the US government's problems with whitehouse.gov. It was powerless to prevent a registrant from running a porn website at whitehouse.com. Unregistered brands will face these same concerns, as will trademarked brands outside the limited protection of ICANN's Trademark Clearinghouse.

With the application period expected to begin in January 2012, the ANA and a coalition of like-minded groups has limited time to make the counterargument that this effectively demands a ransom for top-level domains similar to big names and big brands.

To make their case, AdWeek's Bachman writes, the ANA and a coalition of like-minded groups are trying to follow the money:

The coalition is targeting the Commerce Department first because its National Tele-communications and Information Administration controls the contract for the Internet Assigned Numbers Authority that allows Icann to coordinate domain names. That contract, recently extended for six months, is up in March. “Icann cannot operate without IANA,” said Doug Wood, a partner with Reed Smith who’s representing the ANA. “Commerce has a lot of leverage long term.”

It might be a tough sale, though. A spokeswoman for the NTIA said its “role is not to substitute judgment for Icann, but rather to make sure Icann’s decision-making process is open and provides opportunity for stakeholder input,” and that in this case NTIA was “relatively pleased” with Icann’s process. But an industry representative who attended a recent Icann meeting in Senegal said Commerce “expressed disappointment at the Icann meeting about Icann’s policy-making activities.”