For those hoping to get
... or even apply for ... a good .info domain you can just about forget it if you
don't have a trademark. ICANN has allowed a loophole which allows trademark holders,
including holders of artwork that contains a text of a generic word, to get the domain
associated with the word within the artwork.The first signs of what is happening
can be seen via the Tucows system. Reservations for the opening of the Sunrise and
Landrush periods are being taken. But, if there is already an order queued under
Sunrise there is no point in accepting an application for Landrush because the domain
will never make it that far. I have only tested a few but domains such as privacy.info,
consumer.info, music.info, pets.info, movies.info, and whois.info are already queued
up for Sunrise registration at Tucows.
The ICANN-approved loophole is found at:
http://www.icann.org/tlds/agreements/info/registry-
agmt-appj-11may01.htm
"In order for trademark and service mark owners to qualify
to receive a registration during the Sunrise Period (a "Sunrise Registration"), the
following information must be provided to Registry Operator: (i) the ASCII characters
name of the trademark or service mark; (ii) the date the registration issued; (iii)
the country of registration; and (iv) the registration number."
The loophole is
that trademarks are often not issued based on "ASCII characters name of the trademark
or service mark" but are based on artwork that happens to contain a generic term.
Another
loophole in the rules would allow anyone to register a domain under Sunrise and use
fake trademark information or unauthorized trademark information. If someone wants
to complain they must pay $295 and, if they win, the domain gets but back into the
pool of available domains. The exception to this would be the holder of a trademark
who could get the domain transferred to them. Anyone could register domains under
this and just turn over the domains that generated complaints.
One Intellectual
Property representative recently pointed out that nothing illegal happens if domains
are registered by a trademark holder when the domain actually should have been released
to the general public: "none of this is a tort - there is no damage to an identifiable
third party's property right." This contrasts the so-called "cybersqatter" situation
where a member of the public would register a domain before a trademark holder got
there.
Russ Smith
TheNic.com