The brave new world of ICANN’s "new gTLDs”: An analysis of trade mark disputes during and post delegation

The aim of this article is to provide a comprehensive and critical analysis of trade mark disputes concerning new generic top-level domains or "new gTLDs" that have arisen both during and after the process of their delegation. In its first part, the article considers pre-delegation disputes, which mainly determine whether or not a particular "string" becomes delegated resulting in its inclusion in the root zone of the hierarchical namespace of the Internet's Domain Name System. Essentially, these disputes concern the "right" side of the dot. The second part of the article considers post-delegation disputes, particularly between trade mark owners and third parties who have registered domain names with a new gTLD. These are disputes concerning the "left" side of the dot. A consideration of disputes concerning new gTLDs reveal a problematic interplay between ICANN's dispute resolution mechanisms that apply during and after the delegation process.. The outcome is that those who own non-fanciful trade marks are at a significant disadvantage in a world of new gTLDs.