Defensive Registration

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Defensive Registration refers to registering domain names, often across multiple TLDs and in varied grammatical formats, for the primary purpose of protecting intellectual property or trademark from abuse, such as cybersquatting.[1] Based on the report entitled "Assessment of ICANN Preliminary Reports on Competition and Pricing" prepared by Michael Kende, an economist and head of Analysys Mason, defensive registration was defined as registration that is not unique, does not resolve, redirects traffic back to a core registration or does not contain unique content.[2]

Through ICANN's new gTLD expansion program, it is possible to also defensively register at the top-level, meaning that instead of registering defensively, a company could register .brand with no intentions to use the TLD but solely to protect their interests.

ANA's Concern Over New gTLDs and Defensive Registration

Various businesses and organizations, particularly the members of the Association of National Advertisers (ANA) and the Coalition for Responsible Internet Domain Oversight (CRIDO), anticipated the need for large scale defensive registration to protect their brands in New gTLD spaces. They believe that the costs of defensive registration across all the new gTLDs will be burdensome to brand and trademark owners. According to ANA, the heightened need for defensive registration was even highlighted by gTLD consultancy firms and registries on their service offerings. For example, ANA noted that Neustar offers a .brand defensive registration and application and administration pricing package, known as a Brand Assurance Package.[3] [4] The concerns over defensive registration were brought up by ANA during the Congressional hearings on the new gTLD program. These concerns prompted [NTIA]] Assistant Secretary Larry Strickling to request ICANN to further educate the Internet industry regarding the current protection mechanisms built-into the program, and to address the fears that trademark owners will be forced to defensively apply for dot-brand gTLDs. In his letter to ICANN, Strickling stated, "We think, and I am sure ICANN and its stakeholders would agree, that it would not be healthy for the expansion program if a large number of companies file defensive top-level applications when they have no interest in operating a registry. I suggest that ICANN consider taking some measures well before the application window closes to mitigate against this possibility." Furthermore, Secretary Strickling directed ICANN to develop a mechanism to address the concerns regarding defensive registrations.[5]

ICANN's Actions on Defensive Registration Concerns

A New gTLD Program Committee composed of all non-conflicted voting members of the ICANN Board was established by the Internet governing body to navigate issues related to the new gTLD program, such as the concerns over the perceived need for defensive TLD applications. ICANN also increased awareness regarding the program's protection mechanisms, such as the objection process. In addition, ICANN opened a public comment period to specifically tackle the issue of defensive registration and to provide recommendations on how to resolve it. The New gTLD Program Committee "direct[ed] the staff to provide a briefing paper on the topic of defensive registrations at the second level and requests the GNSO to consider whether additional work on defensive registrations at the second level should be undertaken."[6] [7] The public comment period was implemented to increase the awareness about the available rights protection mechanisms, to encourage the internet community to provide their input regarding defensive applications, and to show to Congress that ICANN is taking appropriate actions to solve the problem.[8]

Consumer Trust Working Group Recommendation

The Consumer Trust Working Group noted that, as a measure of success, defensive registration on new gTLDs should not be more than 15% after three years. For example, if a registry operator was able to register 15,000 domain names during the Sunrise registration, within the next three years it should be able to register 85,000 domain names to demonstrate a successful consumer choice.[9]