There's something sexy about the term "top-level domain." Just look at it, sensuously exuding a smug self-confidence that is alluring in the same way egotistical antebellum plantation owners were. As the World Wide Web becomes ever more entwined in daily life, TLDs' cachet grows, too. It's not merely "nice" to own a snazzy domain name in a sought-after TLD these days. For a growing number of businesses and individuals, it's mandatory - and that trend probably is here to stay.
However, because language is a surprisingly finite commodity and brevity is a virtue in all things Web-related, the dot-com space - the Web's original and still preeminent TLD - is running out of real estate. Except for creative types who can maneuver a completely fabricated word into a marketing phenomenon or the few brave souls who don't mind directing visitors to URLs that circle the globe three times before arriving at the "dot," dot-com is overbuilt. For that and a host of other reasons - including a need to democratize the Web's infrastructure, national and regional pride and the virtual equivalent of manifest destiny - the Internet Corporation for Assigned Names and Numbers (ICANN) periodically has accepted applications for new TLDs. Historically, the process has been anything but simple and trouble-free.
ICANN hopes to change that. This past June, the Web's coordinating body announced it was in the process of "revolutionizing" the way in which new TLDs are generated. Instead of issuing a time-limited call for a narrow category of applications every couple of years as it has done only twice since 2000, ICANN said it would "broaden" the process, lowering the barriers to entry for some TLD registry hopefuls while at the same time refining the application-and-approval system. Reportedly the new process will dispense with time limits and categorized application periods and eventually allow applications to be made and considered 24/7/365. The new process is designed to make possible the use of non-English characters in TLDs and to lay out the rules more clearly so everyone knows up front exactly what is expected of an application. ICANN also intends to establish a clear-cut procedure for handling objections to proposed TLDs that could be deemed controversial, immoral or disruptive of the public order.
In such a world, a customized TLD could pass for a powerful aphrodisiac. However, despite some scuttlebutt to the contrary, what the new process will not usher in is a "kitchen sink" approach to domain extensions. Nor will the process be inexpensive or without a whole new set of hoops through which applicants must jump in order to grab the brass ring.
In fact, with the exception of a few much-touted but as-yet-unformalized new aspects, the new process very much will resemble the old process, wearing lipstick.
The ICANN maiden's tale
As things stood in August, Internet users had a range of 21 TLDs from which to choose. Dot-com, dot-net, dot-org, dot-info and dot-tv are among the most well known and are considered "generic top-level domains," or gTLDs, meaning anyone can register a URL within them for almost any purpose. Many of the others - like dot-us, dot-ca, dot-uk and dot-au - are so-called "country code top-level domains," or ccTLDs, and are designed to be used for country-specific sites. (Technically dot-tv is a ccTLD, as well, but as a practical matter it stands with the gTLDs.) Others - like dot-gov, dot-edu, dot-asia and dot-mobi - are "sponsored top-level domains," or sTLDs, which means they have been set aside for use by specific groups of sites that meet prescribed criteria.
One of the things ICANN hopes to accomplish with the new TLD approval process is to smooth the way for groups wishing to establish new sTLDs. Recent chatter at ICANN general meetings and on the Internet at large has convinced the organization the demand for sTLDs outstrips ICANN's current time-limited-application-round method of providing them. The new system will allow applicants "to self-select their domain name so that choices are most appropriate for their customers or potentially the most marketable," according to an ICANN announcement. "It is expected that applicants will apply for targeted community strings, as well as generic strings like dot-brandname or dot-yournamehere. There are already interested consortiums wanting to establish city-based top-level domains like dot-nyc (for New York City), dot-berlin and dot-paris."
That does not mean people will be rushing to capture TLDs in the same way they collect URLs. Although ICANN media advisor Jason Keenan said the organization hopes to see "hundreds or thousands" of applications for new TLDs in all subspecies when the new process begins accepting proposals during the second quarter of 2009, there are significant criteria that will limit who can manage TLD registries (which all TLDs must have). For one thing, the non-refundable application fee - which when settled upon will represent nothing more than an attempt to recoup ICANN's costs in reviewing the application and establishing the registry, according to Keenan - will rise from the $40,000 ICM Registry paid in 2003 to apply for the now-rejected dot-xxx to "somewhere between $50,000 and $500,000," Keenan said. In addition, there will be "serious [yet-to-be-finalized] financial and technical requirements" for any group wishing to serve as a domain registry.
"This is not like registering a domain name," Keenan said. "It's a major business issue and should be approached as such."
Primarily, he noted, ICANN views the new TLD application process as a marketing opportunity. "The Internet has matured since 2000 [when the first round of gTLD applications was accepted]," he noted, adding that the ubiquitous concept of "branding" plays a larger role in the Internet daily. "More people have more ideas. The marketing potential has changed, and we're creating an opportunity there."
A major sticking point?
The modification to ICANN's TLD application process that may be of most interest to the adult entertainment industry involves extensions that could be considered "inappropriate," "controversial" or otherwise offensive within certain communities. The continuing saga of dot-xxx illustrated the need for ICANN to address that issue before history repeats itself.
ICANN never intended to set off fireworks when in 2003 it accepted ICM Registry's application to establish dot-xxx as an sTLD devoted to the adult entertainment industry. Initially the idea found some support within the adult industry, and while ICM didn't experience entirely smooth sailing through the process, it did feel it satisfied all of ICANN's requirements at the time, according to the ICM Registry President Stuart Lawley. At first accepted, then reconsidered, then renegotiated, then provisionally accepted, then attacked by governmental entities and the so-called "sponsoring group" (much of which by that time had renounced the whole idea), then outright rejected, the dot-xxx application is called "dead" by ICANN but remains in legal limbo, pending resolution by an independent review panel administered by the International Centre for Dispute Resolution.
"We filed the first-ever independent review petition [in June] to hold ICANN's feet to the flames under the previous rules," Lawley said, referring to the rules in effect at the time the dot-xxx application was filed. "ICM was told we met all the criteria, and then we had the rug pulled out from under us. We consider [the application rejection] an illegal breach of ICANN's bylaws and international law. We were clearly discriminated against because of dot-xxx's content."
In a nutshell, ICM was beyond irritated that after spending more than $4.5 million to adhere to ICANN's policies and procedures, an sTLD that looked poised for approval could be derailed by objections from federal governments and social conservatives who found the notion of an adult-content-specific sTLD immoral. (ICANN claimed an apparently growing lack of support within the supposedly sponsoring community played a larger role in its decision.) ICANN's bylaws prohibit the organization from engaging in content regulation vis-à-vis TLDs, but Lawley maintains content censorship is exactly what killed dot-xxx. The bottom line: He and ICM want the ICDR to rule ICANN must establish dot-xxx and give ICM the contract for its administration.
In order to head off at the pass any potential future unpleasantness of similar type, ICANN is establishing a new mechanism to deal with objections to controversial or otherwise disputed TLD applications. First, all applications will be published on ICANN's website so interested parties may peruse them. An as-yet-undefined process will allow objectors to forward their concerns to ICANN, which in turn will forward the application for further review by a yet-to-be-established, recognized international body that will operate completely independently of ICANN specifically for the purpose of reviewing controversial applications. Keenan mentioned dot-nazi - which might be deemed illegal in countries like Germany and France - as an example of a TLD that could trigger a review by the controversy resolution body.
Lawley cited dot-xxx's odyssey as a cautionary tale, warning others who might be tempted to apply for potentially controversial TLDs to think long and hard before committing to such a course of action. "Under the new rules, it is unlikely something like [dot-xxx] would ever see the light of day," he said, adding that the "morality and public order" clause that triggers extra application scrutiny amounts to the sort of content regulation prohibited by ICANN's bylaws. "One ICANN watcher called the new rules ‘Frankenstein's monster.' They are far more onerous than the previous rules, and in my view, any controversial application will have a very uncertain outcome."
More uncertainty
Also uncertain at this juncture is how ICANN might deal with conflicting applications, especially for trademarked names that are suggested as TLDs. (No one interviewed for this report could explain why a trademark owner might want to endure the expense and aggravation of applying for a trademark-based TLD, but the concept has been proposed.) According to Keenan, an auction system is under consideration as one method of sorting out the winner among dueling applications.
At least one attorney who specializes in trademarks and Internet law doesn't think that's a good idea. "I don't like the idea that they're going to send [the registry contract] to the highest bidder or the first to the finish line," Marc J. Randazza, an attorney in the East Coast office of the firm Weston, Garrou, Walters & Mooney, said. "Neither of those has worked well and I hope they abandon them both, but then, [ICANN] never has been a paragon of any great sense."
Randazza and Lawrence G. Walters, a managing partner in Weston Garrou, Walters & Mooney, foresee what they called "fights" over trademarked extensions. For one thing, even though it used to be considered impossible to trademark common words, everyday terms are showing up more often in modern trademarks. That may contribute to some interesting disputes as terms like "mustang" (which has been trademarked for both a car and a timepiece) and "delta" (which serves as the trademark for an airline and a plumbing-fixtures manufacturer) could come under scrutiny. "What do you allow?" Walters asked. "Does an applicant need to own the trademark to register a domain extension [that comprises a common word]?"
"I don't know how ICANN is going to handle issues like that," Randazza said. "They don't seem to have figured it out yet; the procedures are not yet in place. Essentially what they're saying is, ‘We're going to do this, but we don't know how.'"
One method for corralling potential trademark disputes that will not be employed is the sort of "sunrise" registration period often employed by TLD registries. During sunrise periods, trademark owners are allowed to protect their trademarks within a TLD by registering before the registry opens to the general public. Keenan said because TLDs are not the same as URLs, ICANN does not see a potential for cybersquatting, which is what sunrise periods are meant to curtail.
Despite potential snarls, Randazza said he thinks "the overall idea [of opening up the TLD registration system] is a great thing. It's a more powerful branding tool."
On that, diverse people agree. Many also agree with Walters on another notion: "It's certainly a good revenue-raising option for ICANN."
A domainer among men
GEC Media founder and President Gregory Dumas is one of those who agrees with Walters. "It almost sounds like this is a way to generate revenue [for ICANN]," he said, "but I don't think we're going to be pummeled with a lot of new extensions" and therefore bulging ICANN coffers. "I personally don't think ICANN is going to approve a bunch" of new TLDs, he concluded.
Instead, Dumas - who owns a significant number of "investment URLs" himself and advises others about how to monetize the URLs they own - sees ICANN's attempt to streamline and standardize the TLD application process as filled with potential for people who make their livings buying, selling and otherwise churning cash through domain names. "Any new TLD that's launched increases the value of a dot-com, but not all the others," he said. "Dot-com is the gold standard. Dot-net, for example, is worth about 10 percent of what dot-com is worth; it's a substandard version of dot-com."
That's not to say URLs in domains other than dot-com are worthless or can't become as obscenely valuable as dot-com names, he noted. "There's an ass for every seat," he said, allowing that sites like AEBN.net certainly have done well for themselves by parlaying the original implication of the dot-net TLD - designating literal networks - into a profitable location.
As for whether ICANN's new world order will make it either easier or more difficult for someone to register a TLD that could resonate with the adult entertainment industry - or alternately raise the specter of a "walled garden" in which all adult websites would be forced to locate - Dumas said he doesn't see that happening. "I don't see [any new extensions ICANN may approve] affecting adult at all," he said. "I'm not going to buy them; I'm not going to be concerned about them. I'll monitor them, but I'm not afraid of them in the least.
"There's always a new opportunity [for domain investors]," Dumas continued. "There was good activity with dot-mobi, dot-eu, dot-asia," and there will be new opportunities within new TLDS. "They'll create niche markets, but they won't affect the overall global market for dot-com. It only strengthens dot-com."
Regardless whether ICANN's new system turns out to be good or bad for ICANN, the adult industry, domain speculators, countries wishing to use non-English characters or the Web community at large, everyone can rest comfortably in the status quo for the near future. The first new TLDs are not expected to begin implementation until the fourth quarter of 2009, at the earliest.
This article originally appeared in the December issue of AVN Online. To subscribe, visit AVNMediaNetwork.com/subscribe.
