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NSI | Herndon, VA, US |
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USC-ISI | Marina del Rey, CA, US |
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PSInet | Herndon, VA, US |
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U of Maryland | College Park, MD, US |
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NASA | Mt View, CA, US |
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Internet Software C. | Palo Alto, CA, US |
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DISA | Vienna, VA, US |
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ARL | Aberdeen, MD, US |
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NORDUnet | Stockholm, SE |
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NSI (TBD) | Herndon, VA, US |
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RIPE | London, UK |
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ICANN | Marina del Rey, CA, US |
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WIDE | Tokyo, JP |
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At lower levels in the DNS hierarchy (for
example .com), the operators of the nameservers and the associated
registries have received compensation, first by governmental
subsidies in the late 1980s and early 1990s and then, beginning
in the mid-1990s, by charging those who wished to register domain
names within the system. The root nameserver system itself, however,
has always been operated on a voluntary, public-service basis
and without user fee (or even government subsidy, though the
U.S. Government does contribute by operating several of the thirteen
root nameservers). As a result, the system has become broadly
accepted by Internet users worldwide as an integral feature of
the Internet.
III. THE INTRODUCTION
OF NEW TOP-LEVEL DOMAINS
Since long before ICANN's establishment, there has been intense interest in the Internet community in the introduction of new globally available top-level domains. As the Internet has evolved from primarily a US-based academic and research network to a ubiquitous global commercial medium, there has been strong pressure to augment and diversify the top-level domains established in the mid-1980s when the DNS was originally deployed. But the introduction of globally available top-level domains presents both technical and non-technical challenges. While most Internet engineers believe that some number of additional top-level domains can be added without serious risks of instability, there is considerable uncertainty about how many could be added without adverse side effects, and very few engineers have been willing to guarantee that there was zero risk of instability. Many involved in the Internet have also cited the potential for a confusing deployment process or the possibility of prevalent abusive registrations as possible pitfalls in introducing top-level domains. Given the increasingly critical role the Internet now plays in everyday commercial and personal life, the almost uniform consensus in the community has been to be cautious and prudent in this process.
Because ICANN is a consensus development body that relies on bottom-up policy development, the issues of whether and how to introduce new top-level domains were first taken up by the Domain Name Supporting Organization (DNSO), the ICANN global constituent body responsible for domain name policy issues. The DNSO organized an open Working Group, which, after nearly a year of study and deliberation, recommended that a small number (6-10) of top-level domains be initially introduced, and that the effects of that introduction be evaluated before proceeding further. That recommendation was forwarded to the Names Council, the executive body of the DNSO, which reviewed the Working Group recommendation and public comments on it, and recommended to the ICANN Board that it proceed with the introduction of new top-level domains "in a measured and responsible way." The Names Council suggested that "a limited number of new top-level domains be introduced initially and that the future introduction of additional top-level domains be done only after careful evaluation of the initial introduction."
Consistent with the ICANN bylaws, the ICANN Board accepts the recommendations of Supporting Organizations if the recommendations meet certain minimal standards designed to ensure that they truly represent a consensus position. Thus, the Names Council recommendation was published for public comments, and following the receipt of numerous public comments, the ICANN Board established a procedure for selection of a limited number of top-level domains intended to lead to a measured and responsible introduction.3
In early August 2000, ICANN posted detailed application documents, including a set of nine factors to guide the selection of new top-level domains, and called for proposals from companies and groups interested in operating new TLD registries. The application process required the filing of a detailed proposal addressing all the factors, including technical capabilities, business plans, and proposed launch-phase and registration policies. The application deadline was early October, and by that time forty-four complete applications were received from those proposing to introduce one or more new global top-level domains. An extensive, transparent community-based consultation process followed, including extensive comments from intellectual property interests, which ultimately led, on November 16, 2000, to the selection of seven top-level domain proposals for negotiations toward appropriate agreements between ICANN and the new registries:
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Air-transport industry | Societe Internationale de Telecommunications Aeronautiques SC, (SITA) |
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Businesses | JVTeam, LLC (now known as NeuLevel) |
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Cooperatives | National Cooperative Business Association, (NCBA) |
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Unrestricted use | Afilias, LLC |
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Museums | Museum Domain Management Association, (MDMA) |
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For registration by individuals | Global Name Registry, LTD |
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Accountants, lawyers, and physicians | RegistryPro, LTD |
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As can be seen, top-level domains with a great diversity in intended purposes were selected, considered to be broadly representative of the different kinds of top-level domains we could expect to encounter in the future. The right-hand column in the above table reflects that they fall into two broad categories: commercially operated top-level domains of broad appeal (known as "unsponsored" top-level domains) and narrowly targeted top-level domains operated by non-profit sponsoring organizations (known as "sponsored" top-level domains). As contemplated, the selected group of registries embraces large and small, for-profit and non-profit, open and restricted, experienced and entrepreneurial.
B. Negotiations Toward Agreement.
Since November, we have been in the process of negotiating and drafting agreements with the selected applicants. Because these agreements will be templates for future agreements, we are taking great care to make sure that the structure and terms are replicable in different environments. Likewise, because these agreements will contain the promises and commitments under which the registries will have to live for some time, the applicants are also being very careful.
The initial focus of the negotiation process has been on the four "unsponsored" top-level domains: .biz, .info, .name, and .pro. To promote uniformity in the basic terms under which these top-level domains will be operated, the goal has been to achieve a uniform base agreement with all four applicants and to accommodate differences by use of appendices to the base agreement (twenty-four in all) covering technical standards, start-up plans, restrictions on the availability of registrations within the domains, and other items specific to each top-level domain.
In late February, ICANN and all four of the selected unsponsored top-level domain operators achieved agreement on the language of the uniform base agreement. That agreement was posted on ICANN's web site4 and the public was given the opportunity to comment both over the web and in-person at ICANN's meeting in mid-March. ICANN and the four selected operators have also reached agreement on many, but not all, of the necessary appendices. Work is continuing, and as appendices are completed , we are posting them for public comment.
At its meeting in mid-March, the ICANN board of directors considered the numerous public comments and determined that the structure of the agreement language that had been negotiated was a sound approach for the unsponsored top-level domains. The board called for prompt completion of the negotiation and drafting process and authorized the agreements to be entered once the language of the agreements and appendices is completed and has been posted for seven days. We expect that at least one of the four sets of appendices will be completed in approximately two weeks. That should allow public announcements of the roll-out schedule for the top-level domains to begin as early as late May of this year. Some of the domains are likely to begin actual registrations in the third quarter of this year.
C. Intellectual-Property Aspects.
The agreements and appendices primarily cover the technical and economic terms under which the top-level domains will be operated. They do, however, have some contractual provisions designed to facilitate the protection of intellectual property rights:
1. Dispute Resolution. All four of the unsponsored top-level domains will employ the Uniform Dispute Resolution Policy established by ICANN for the fair and cost-effective and speedy resolution of disputes where a trademark owner alleges that a domain name identical or confusingly similar to its trademark has been registered and used in an abusive manner. The policy contemplates that good-faith trademark disputes - as opposed to bad-faith, abusive registrations - are to be resolved in court, and provides that court decisions will be promptly implemented by the domain-name registrars.
2. Start-up provisions. The introduction of the new top-level domain is likely to lead to an initial surge in registrations. This surge can challenge the ability of trademark owners to defend their marks, as well as the more general proposition that all those wishing to register names not subject to trademark should have a fair chance to do so. Because no global top-level domains have been introduced for over fifteen years, we have no real-world experience concerning how to meet these challenges in the now-heavily-commercial Internet. Accordingly, based on extensive consultations with the Internet community, including intellectual property interests, the selected operators have taken great care to design start-up protocols to address intellectual property issues specifically and fairness concerns in general. These plans take somewhat different approaches, the achievements of which will be closely monitored with the purpose of developing real-world experience as to what works best. All of the approaches incorporate detailed publicity plans, so that intellectual property owners and potential registrants will have the information they need to protect their interests.
3. Restrictions. Three of the selected unsponsored top-level domains (.biz, .name, and .pro) - and all of the sponsored - will enforce restrictions of one sort or another on who may register names in the domain. The use of restrictions, if properly implemented, offers the potential to avoid consumer confusion about Internet naming by segregating similar names associated with different activities, and thus holds some promise to lessen the domain-name/trademark issues that have arisen with undifferentiated commercial domains such as .com. The three restricted unsponsored top-level domains have extensively consulted with the intellectual-property and other concerned entities to achieve an appropriate statement of the restrictions for each, as well as an appropriate mechanism for enforcement of the restrictions.
The process of introducing new global top-level
domains has been a long one, and the limited number of top-level
domains that will be introduced initially is disappointing to
some in the Internet community. The community generally realizes,
however, that it has limited experience in how best to deploy
new top-level domains or what the exact effects will be. In recognition
of these limitations, ICANN has established a very careful, step-at-a-time
process for introducing top-level domains. This approach allows
detailed monitoring of the process by all affected, including
intellectual property owners. The applicants selected to operate
the top-level domains have shown a highly responsible and careful
approach to protection of the rights of others in the deployment
of these new top-level domains. While no process can be guaranteed
to be foolproof, based on the careful progress that has been
made to date we are hopeful that the introduction of these new
top-level domains will proceed in a manner that protects the
rights and expectations of all involved.
1. The DNS replaced an earlier, smaller capacity translation mechanism known as the "hosts.txt" system.
2. A "nameserver" is an Internet computer that provides DNS services.
3. See Resolutions of the ICANN Board on New TLDs, at <http://www.icann.org/tlds/new-tld-resolutions-16jul00.htm>.
4. <http://www.icann.org/melbourne/new-tld-agreements-topic.htm>
Louis Touton is Vice-President, Secretary, and General Counsel of the Internet Corporation for Assigned Names and Numbers (ICANN).
He holds Bachelor of Science degrees from the Massachusetts Institute of Technology's departments of Electrical Engineering and Computer Science (1977) and Mechanical Engineering (1977). He received his JD degree from Columbia Law School (1980), where he served as an editor of the Columbia Law Review and as co-editor of the thirteenth edition of A Uniform System of Citation (1981), commonly known as the "Bluebook."
In 1980-1981, he served as law clerk to the Honorable Jerome Farris of the United States Court of Appeals for the Ninth Circuit. Upon completion of his judicial clerkship, he joined the law firm of Jones, Day, Reavis & Pogue, where he practiced for eighteen years, first as an associate (1981-1988) and then as a partner (1989-1999) in its Los Angeles and Dallas offices. During this time, his work focused on technology-related commercial litigation, including patent litigation in the semiconductor and communication industries. He is a member of the bars of Arizona, California, Texas, and Washington; is admitted to practice before nine U.S. federal courts; and is registered to handle patent matters before the U.S. Patent and Trademark Office.