There is nothing fundamental here: the human race can do and has done very well for dozens of millennia without domain names or trademarks. There is equally nothing sinful here: an established way of doing business is challenged by current events, and the incumbents scramble while new entrants seek to break into the business. The trademark industry estimated that there would be millions of trademark violations in the new gTLDs. There weren’t. The trademark industry estimated that brands would need to spend millions to protect “their” names. They didn’t. The reason there are issues are: (1) domain names are unique; they wouldn’t work if they weren’t. Trademarks are not unique, they wouldn’t work if they were. (2) First-come, first-served is a good way to fairly allocate a resource, especially compared to all the other ways — e.g., reserving names for rich entities claiming dubious global rights according to rules dreamed up by these same entities. This is not a failing of the domain name system, this is a problem of a global system being mapped onto multiple regional systems with all kinds of special rules top benefit those with the power to get special rules made up for them. It was never up to the domain name system to solve this mess, as evidenced by centuries of trademark lawyers failing to solve it even with no domain names to muddy it up. When the slave trade ended in the UK, the slavers set up such a howl that the British government had to pay them vast sums to get them to shut up. The trademark lobby didn’t do quite as well, but their howls were effective in protecting established trademarks from being infringed in their class, within their jurisdictional reach. Which they would have been anyway, because that’s the law, which though admittedly cumbersome does thoroughly protect trademarks. Trademark holders weren’t howling about rights, they were howling about cost. Howling is what incumbents do when events threaten their protected profits. Nothing fundamental here, nothing sinful. Nothing new at all — not even anything remarkable. .
On May 22, 2025, at 12:19 PM, Barry Shein via At-Large <at-large@icann.org> wrote:
The 2012 round was an exercise in greed and opportunism. Brands were shaken down to have redundant domains lest their trademarks get abused in the new gTLDs. New takedown measures had to be deployed by ICANN for generics, yet ccTLDs could travel their own path here.
This has to be one of the most fundamental sins of the current system.
For example, you can't register a trademark for a string in multiple classes (e.g., WIPO or US IPTO) just to prevent others from registering.
No doubt it happens but it's very weak legally.
There's a reason for that.
It's not an oversight: they, the trademark registries, foresaw the problem.
One of the selling points for new TLDs was that companies whose mark legally coincided, for example Delta Faucets and Delta Airlines, or Ford Motor Company and Ford Modeling Agency, had no outlet to register DELTA.something or FORD.something with the very limited set of TLDs.
Doubly so for new companies or products which didn't even exist when these domains were grabbed defensively.
It's perfectly reasonable -- I realize there are some exceptions where brand confusion might still occur -- for Delta Faucets and Delta Airlines to register and defend the trademark "Delta" in their respective usage classes (faucets vs airline) without conflict.
But no similar provision was ever made for domains.
Delta Airlines could register DELTA.FAUCETS first (if that TLD existed) and Delta Faucets was just out of luck other than perhaps offering to buy the domain from the airline company or possibly trying to manufacture some sort of UDRP (et al) action or similar. A route available perhaps to highly funded concerns but not most.
Or maybe try to register something less appealing, perhaps DELTA.XYZ if the airline hadn't already snapped that up also.
My examples are very large, well-known corporations but substitute with newer, smaller concerns.
This aspect of new TLDs is profoundly amateurish and unprofessional along with encouraging the acquisition of strings which represent no activity whatsoever, cybersquatting challenges aside, but why create, as the legal phrase calls it: An attractive nuisance?
I say profoundly because as mentioned above major trademark registries had already rejected this model long before the internet even existed.
If there were ever an independent, external review of this system I believe this would be cited as prima facie evidence of collusion and self-dealing. Not in theory but in practice, and on a massive scale.
-- -Barry Shein
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