| The Internet Corporation for Assigned Names and Numbers ("ICANN") implemented the New generic Top-Level Domain Program ("Program"). Before this program, there are twenty-two generic domain names among the internet domain name space. The Program opens a window for applicants to register more generic domains. As to the operation of the internet, the right holder of intellectual properties, especially trademark owners and the users of the internet, the expansion of the new generic top-level domain ("new gTLDs") will bring the butterfly effect. This paper analyzes the right conflicts brought by the new gTLDs expansion program and the right protection mechanism designed by ICANN. First of all, this paper introduces the background of the Program, including the establishment history and characteristics of ICANN, the internet space situation before the expansion of new gTLDs, the progress of the Program, and the procedure for applicants to apply for the new gTLDs. After the introduction part, this paper analyzes the issue of right conflicts regarding the gTLDs expansion. Firstly, this paper briefly summarized different views (positive or negative) towards the Program; then this paper pointed out that the fundamental reason of the right conflicts comes from the difference between trademark law and the domain name system; last but not least, this paper analyzed the right conflict issue in detail, concluding that the expansion of gTLDs will complicate the previously existing right conflicts in the second domain. After the right conflict analysis, this paper goes on further discussing the right protection mechanism implemented by ICANN. Based on the different stages of the new gTLDs delegation procedure, this part is divided into two sections:the right protection mechanism before the delegation (during the application process) and the right protection mechanism after the delegation of the new gTLDs. During the application process of the new gTLDs, the trademark owners who believe their trademark rights are infringed by the applicants of the new gTLDs, can bring objections against the proposed gTLDs, based on four legal grounds provided by ICANN, among which, the string confusion system may be started for two identical or confusingly similar proposed gTLDs. As to the right protection mechanism after the delegation of gTLDs, there are mainly two mechanisms:1. The Right Protection Mechanism (the Trademark Clearinghouse Services) and2. Dispute Resolution Mechanism. The Dispute Resolution Mechanism includes the Uniform Dispute Resolution Policy ("UDRP"), Uniform Rapid Suspension System ("URS"), Post-Delegation Dispute Resolution Procedure and the Registration Restriction Dispute Resolution Procedure. The last part of this paper makes suggestions to the right protection mechanism. First, this paper suggest that ICANN should value the importance of educating the trademark owners who registered their marks as new gTLDs to utilize their marks in the proper ways; second, ICANN should learn from the practices of the objection procedure to make the procedure more efficient; third, ICANN should rethink its string confusion system, an independent analysis of the rationale of the applicants is suggested to be a prepositional procedure before the auction; then, ICANN should remove the use requirements of the trademarks and lower the standard of obtaining the protection from ICANN right protection mechanism; at last, this paper suggests that ICANN incorporate the URS into the existing and mature UDRP to design a more efficient method for the trademark owner to protect their legal rights.The author studied this issue based on the research of the "new gTLDs Applicant Guidebook" issued by ICANN. Besides, the author refers to several law review articles posted on the U.S. academic journals and a few Chinese articles analyzing conflicts between trademarks and domains. Since there are very few Chinese articles discussing the new gTLDs, this author hopes this paper can serve as a very modest start in this area. |
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