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Sep 30, 2011

Trademark owners to block trademarks from becoming .xxx domains

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Werksmans Attorneys intellectual property director Donvay Wegierski discusses the introduction of .xxx domain names.
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California-based nonprofit public benefit organisation the Internet Corporation for Assigned Names and Numbers (Icann) and limited liability company ICM Registry, entered into an agreement in March that resulted in the approval of a new top-level domain (TLD). The new .xxx TLD is aimed at websites that may contain adult content.

Local commercial and corporate law firm Werksmans Attorneys intellectual property director Donvay Wegierski says the agreement will enable adult website operators to categorise their websites as those containing adult content, indicating that they are adult entertainment (AE) entities, thereby clearly distinguishing them from other websites.

Wegierski explains that an Internet user will be able to identify the website that he or she is about to visit by looking at the domain. The .xxx domain is indicative of a website containing explicit content. However, AE website operators are not obliged to register their sites under a .xxx domain.

She adds that it may be a responsible choice for AE operators to register their businesses as .xxx websites, as this is likely to imply that the website operators accept responsibility for the content of the website and that they adhere to some level of compliance.

“The new TLD can provide a means of control over different content-related categories, reassuring companies and parents that Internet users will not unintentionally or unexpectedly visit AE websites,” she says.

Even though the new TLD will have some definite advantages for the Internet user, it will also face some challenges.

Trademark owners will now have to prevent their trademarks from being registered as .xxx domains by cybersquatters.

“As .xxx introduces a new domain name registry it is recommended that companies with registered trademarks ‘block’ their trademarks from being registered as AE websites,” she says.

Wegierski explains that fewer effective domain names are available, owing to companies’, entrepreneurs’, governments’ and individuals’ increasing demand for some kind of cyber-presence, which results in a “scramble” for available and effective domain names.

Knowing this, cybersquatters follow trends and register attractive domain names, securing titles that will, most likely, be needed and desired by various parties in future.

It can be an expensive and time-consuming procedure for a trademark owner to dispute the registration of their trademark once it has been registered by a cybersquatter.

“Therefore, trademark holders may be compelled to purchase a disputed domain name from the cybersquatter as opposed to lodging a formal complaint,” says Wegierski.

She adds that trademark owners should, therefore, be vigilant in protecting trademarks by registering them as domain names thereby pre-empting and preventing cybersquatters from registering and using domain names that might contain their trademarks.

Securing your Trademark as a .xxx Domain
Trademark owners will be able to prevent their trademarks from being registered as .xxx domains provided that they have a corresponding registered trademark that was registered prior to September 1, 2011.

A sunrise A period for AE website operators, who already have an existing domain name or registered trademark, and a sunrise B period, which is aimed at trademark owners outside the AE industry will run simultaneously from September 7 to October 28, 2011. The applications will be added to the sunrise period queue and granted at the end of the sunrise period.

In addition, there will be a landrush period from November 8 to 25, which is open to all AE website operators irrespective of whether they have an existing domain or registered trademark.

From December 6, the remaining domain names will be registered on a ‘first come, first served’ basis, she adds.

If a trademark owner finds his or her trademark registered as a .xxx domain he or she can then lodge a complaint with the World Intellectual Property Organisation (WIPO).

In order to lodge a domain name complaint with WIPO the trademark holder will need to demonstrate that the disputed domain name is identical or similar to a trademark to which it has rights, that the registrant has no legitimate claim to the domain name and that the domain name has been registered in bad faith.

Insofar as the .xxx domains are concerned, trademark owners will also have recourse to the rapid evaluation service, which provides for .xxx domains to be suspended temporarily pending the outcome of a dispute.

Future Developments
Further, Icann has also approved a plan to allow a significant increase in the number of Internet address endings, also called generic top-level domains (gTLDs).

There are currently 22 gTLDs, which include familiar domains such as .com, .net, .edu and .org.

Icann president and CEO Rod Beckstrom says the organisation has decided to open the Internet’s naming system to unleash the global human imagination.

New gTLDs will change the way people find information on the Internet and how businesses plan and structure their online presence. Virtually every organisation with an online presence could be affected in some way.

Internet address names will be able to end with almost any word in any language, offering organisations around the world the opportunity to market their brand, products, community or charity in new and innovative ways.

Icann board of directors chairperson Peter Dengate Thrush says the decision will usher in a new Internet age. “We have provided a platform for the next generation of creativity and inspiration,” he says.

The decision to proceed with the gTLD programme follows many years of discussion, debate and deliberation with the Internet community, business groups and governments. “Strong efforts were made to address the concerns of all interested parties, and to ensure that the security, stability and resiliency of the Internet are not compromised,” says Thrush.

Icann reports that it will soon begin a global communications programme to tell the world about the change in Internet names and to raise awareness of the opportunity afforded by new gTLDs.

The application process will also use this period to elaborate on what is involved in applying for a new gTLD.

AUDIO CLIP

To listen to an audio clip in which Werkmans Attorneys intellectual property director Donvay Wegierski discusses the introduction of .xxx domain names, go to www.polity.org.za and click on 'Multimedia' and then on 'Audio Clips', or listen it on the Polity.org.za App on your iPhone.

Edited by: Shannon de Ryhove
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