As you point out, there must be a compromise in what has become a very long negotiation process between trademark owners, those promoting expansion of TLDs and other interested parties. From a trademark owner’s perspective, the concerns are infringement, confusion, and diminishment in the value of their marks. These concerns can be addressed by limiting the number of new TLDs.

Regarding the lack of a plan to help registries identify trademarks, that might stem from the fact that trademark law is so layered. In the United States, trademark rights can exist under common law, state law, federal law and even international law. Trademark laws are also different in each country. Meanwhile, ICANN is attempting to expand the Internet worldwide, which means that the new TLDs will have different legal implications in each country.

In the US, under our common law, trademarks rights can accrue simply by adoption and use of a mark. Prudent businesses seeking to adopt new marks perform searches that can be as vast as a business chooses, but often include the records in the USPTO, state trademark databases, common law records and domain names. New TLDs would mean that businesses would have to expand their searches further, and, has been pointed out, perhaps be more vigorous in proactively defending their marks.

Judging from your comments and website, you obviously know this subject matter extremely well and will be closely following ICANN’s plans. I look forward to reading more from you, and have linked to your blog at names@work.

The ICANN process was one of deliberation by its equivalent of the general assembly, and arrived at after much debate, democratically: it wasn’t just decided by the Board.

The best thing for new top-level domains to do is to try to figure out how to preserve the rights of trademark owners without charging them a fortune. Unfortunately, the process of carving out infringing names *is* complex and costly. There isn’t a list of names that can simply be blocked, because while the trademark namespace is complex (a name may be “confusingly similar”), the Internet namespace in each TLD is simple — each unique string is unique as far as Internet routing is concerned.

Trademark owners have complained loudly about their costs but as yet no-one has come forward with a plan to help registries and registrars identify what is a trademark and what isn’t, and they are terrified to try because they have no competence in the matter and no authority to deny a domain name application — they could easily be sued for overstepping their bounds.

So while it is undeniable that new top-level domains will impose a cost on trademark owners, it’s also true that there aren’t good alternatives short of stopping the Internet from growing — and that isn’t a realistic alternative. We are seeing another collision between laws made for an earlier era (see “Music, sharing of”) and the reality of the modern day.