The New Dot Context: How to Mitigate Trademark Concerns in ICANN's New gTLD Program

Expanding the Domain Name System without fully addressing the impact on trademark holders is a risk that Internet Corporation for Assigned Names and Numbers (“ICANN”) has seemed to embrace. With ICANN’s new gTLD program, consumers and companies will soon begin encountering new top-level domains that reflect a company’s brand or trademark. Unfortunately, with the inclusion of these so called, brand top-level domains, ICANN is creating potentially disastrous problems for trademark holders, legitimate users, and even consumers: a brand focus limits the use of identical trademarks online and prevents the Domain Name System from having any real and reliable context to distinguish identical trademarks. To mitigate these problems, and to ensure that trademarks can coexist within a trademark-distinguishing context, ICANN should eliminate the brand top-level domain and should focus on context-creating category top-level domains. This Article demonstrates why these problems exist within ICANN’s new program and it sets forth a proposal that seeks to mitigate these concerns and to realign the new program with ICANN’s own goals.