As the domain name system becomes more and more chaotic, the author reminds those within ICANN that he has proposed previously what he believes to be a more logical system. The author proposes a system which would involve two categories of gTLDs, commercial and non-commercial. All domain names within these categories would be restricted to either one or the other of these two categories. The non-commercial, or “.NONCOM” gTLDs would be reserved solely for non-commercial use on the Internet, such as “chat rooms” and “message boards.” Commercial use of one of these gTLDs would result in the cancellation of the registration, as well as the corresponding loss of the registration fee, with a preferential right to re-register in the commercial category.

The commercial category would be broken up into Classes corresponding to the Nice Classification , whereby, for example, a company named Apple involved in the metal industry might register its domain names as “Apple.6” corresponding to International Class 6 covering metal products under the Nice Classification. At the same time, another company with a name and trademark comprising the word “Apple” could register a domain name in Class 9 and coexist with the first company, without a likelihood of confusion, affording both companies with honest claims to the same name the right to peacefully coexist with no loss to either and more importantly, no need for involvement of arbitration proceedings. Users would also, by means of a directory, immediately have access to the correct category.

Those potential commercial domain name registrants who owned a trademark registration for the proposed domain name in a particular Nice class would have priority over those without a corresponding trademark registration. For example, the Apple company in the above example would have priority over an Apple.6 domain name registrant without a trademark registration. This would encourage potential domain name Registrants first to obtain a trademark registration for the proposed name before conducting business on the Internet. This system would most importantly allow for coexistence of domain names that are involved in non-conflicting fields of business.

This system would also discourage the adoption of domain names, which are generic, leaving them open for use by other traders. A good example of this is PETS.COM, who, before the ".COM bust" put them out of business, by registering this domain name were granted a monopoly over the name PETS, whereas in the “real” world this name would not have been registrable as a trademark in most jurisdictions of the world. Other examples are BUSINESS.COM, WINE.COM, etc. Discouraging the registration of domain names which are not distinctive can only increase protections for trademarks on the Internet, and would therefore increase the incentive for companies to create distinctive and unique identifiers to distinguish their goods and services from those of others.

The author’s system could also be used in respect of ccTLDs. It was envisaged by WIPO that ICANN authority would one day cover ccTLDs, although at present these domains are administered and governed, for the most part, by the laws and regulations of individual jurisdictions. This was truly a unique opportunity to create “harmonization” in respect of Intellectual Property rights, and the groups within ICANN, namely the DNSO and the Government Advisory Committee (“GAC”), should have fostered a process designed to achieve more readily such harmonization.

Another proposal within the DNSO which the author believes would be tenable under his system is the possibility of including exclusions in the DNS from the registration of famous or well-known marks, such as COCA COLA, so that no one except for the owners of these trademarks would be able to register anything confusingly similar to these trademarks as domain names. As much difficulty has been encountered in determining what a famous or well-known mark is in the “real” world, it would appear that the implementation of an exclusion for this special breed of mark would be difficult to achieve, particularly given the global reach of the Internet, and definitely in the context of the addition of a wide number of disorganized TLDs. The author would propound this exclusionary process, however, if the Nice Classification were adopted in respect of TLDs and ccTLDs. In this case, it is also possible that treaties such as the Paris Convention and the TRIPS Agreement/WTO could be applied to domain names leading us closer to the creation of a “harmonized” trademark and domain name system.

Furthermore, there is now a thrust to reform ICANN in recognition of the serious problems and weaknesses of ICANN in harmonizing the rules of the newly created TLDs. They are now so numerous and came “on-line” so quickly that it becomes extraordinarily difficult even to know what is available for registration and/or to access information from a given domain name registering agency.

Domain names have become, like the earliest maker’s marks, valuable intellectual property allowing users on the Internet to locate a particular business, venture, or commercial criticism. If the system is not modified in a meaningful way soon, we may have achieved just the opposite of the goal envisioned in adding new TLDs; rather than increased name space, protections for intellectual property owners on the Internet, and an orderly and efficient DNS, there will be chaos and confusion.