Why limitless domains will anger big brands
OUT-LAW Radio, 03/07/2008
We look at the disastrous impact on big brands of ICANN's
decision to allow any internet domain to be registered, and we
explain why the EU wants more returns on university research
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to OUT-LAW radio, the weekly podcast that keeps
you up to date on all the twists and turns in the world of
technology law.
Every week we bring you the latest news and in depth features
that help you to make sense of the ever changing laws that govern
technology today.
My name is Matthew Magee, and this week we ask: what does the
planned explosion in the number of possible internet addresses mean
for brand holders? And we find the European Commission ordering
European universities to be more like British ones when it comes to
making money out of academia.
But first, the news:
eBay pays out millions for fake handbag sales
and
UK wiretaps were illegal, says human rights court
Online auction site eBay has been fined £31.5 million and
ordered to forbid the sale of some luxury perfumes in a French
court order designed to battle the sale of counterfeit luxury
goods.
Handbag, clothing and perfume company Louis Vuitton Moët Hennessy
sued eBay in the French courts, claiming that the company did not
do enough to combat the sale of counterfeit goods.
eBay claims that it cannot police all the sales through its site
and that it makes no guarantee that goods are genuine, and that it
suspends counterfeit auctions when notified of them.
The French court, though, found "serious faults" in eBay's
processes that led to auctions of counterfeit goods going ahead. By
allowing the sales, it said, eBay had damaged the reputation of
luxury brands such as Louis Vuitton and Christian Dior.
eBay said that it would appeal the verdict.
The UK Government's surveillance practices violate the privacy
rights of UK and foreign citizens, the European Court of Human
Rights has ruled. The judgment follows a nine year battle over
phone and internet taps.
The Court found that the UK's wide and secretive surveillance laws
are "not in accordance with the law" and that they violate the
right to privacy guaranteed by the European Convention on Human
Rights.
Civil liberties groups Liberty and the Irish Council for Civil
Liberties took the UK Government to the Court over allegations that
their communications had been intercepted between 1990 and
1997.
The groups said that interceptions of legally privileged and
confidential information took place, and that they had complained
unsuccessfully to UK courts, the Interception of Communications
Tribunal, the Director of Public Prosecutions and the Investigatory
Powers Tribunal.
The Court recognised that the regulation of surveillance had to
have an element of secrecy about it, but said that the UK did not
offer citizens enough information about how much surveillance was
taking place.
That was this week's OUT-LAW news.
The internet's brief history is littered with people paying
ludicrous sums for internet addresses: seven million dollars for
beer.com, seven and a half for business.com. the payouts had a
degree of logic: there is only one beer.com, and scarce resources
attract high prices.
That is: until last week, when the body that runs the internet's
addressing system made probably the biggest change it has ever
made.
ICANN has decided that there should be no limit to the number or
makeup of top level domains. TLDs are the bits that come after the
dot: the com in .com, the UK in .co.uk.
All of a sudden companies will be able to get their brands as
top level domains, surely a massive marketing bonus. Well it seems
not as, as e commerce law expert Struan Robertson of Pinsent
Masons, the law firm behind OUT LAW, explains.
First, though, he outlined the changes.
Struan Robertson: To begin with, you could only
buy the domain names with endings .com, .org, .net. There were a
few other top level domain names but it has always been a finite
number and ICANN has decided just to make that an infinite number
of domain names. They are taking applications from anyone who wants
to start their own top level domain. So you could have .shop and
you can re sell domain names ending .shop.
So on the one hand this gives brand owners the chance to
showcase their goods at their very own domain. On the other hand,
said Robertson, it will give brand owners a massive, expensive
headache.
Struan Robertson: It is a massive change and it
is a change that is going to be an absolute nightmare for anyone
that tries to defensively protect their brand. If you are a brand
owner what you often do is, to avoid the cost of going after cyber
squatters which is pretty expensive, you register domain names that
match your own brand and you do that in all the top level domains.
So when .you came out we saw people registering their brand with an
.eu extension. They did not actually want it; they just wanted to
make sure that nobody else got it.
The problem, he said, is not likely to be people trying to
register your brand as an actual top level domain. It is likely to
be more widespread and expensive than that.
Struan Robertson: The cost is likely to be a
barrier to cyber squatting on the top level domain. I do not think
what we are going to see is somebody trying to buy elastoplast as a
top level domain other than the company with the right to the name.
What we might see though is that for example, somebody might have a
top level domain for .medicine and then re-sell that top level
domain so that anyone can register elastoplast.medicine or any
number of variations of it. And that is where the challenge comes
for that brand holder. The person trying to protect the name
elastoplast feels compelled to snap it up as a name.
To buy up all those domains would push companies' current domain
defence policies to their limits, Robertson said.
Struan Robertson: Companies are going to have a
choice. They are going to have to decide how far they go. They will
already have domain name portfolios. The question is how big does
that portfolio become and how big can they afford for it to become?
If we end up with hundreds of different top level domain extensions
there is a limit to just how many domain names a company can
justify snapping up to avoid cyber squatters getting them. And so
they will be keeping an eye on it but ultimately I think they will
be looking at this as a really bad move by ICANN and something that
is just going to give their whole brand protection business just -
it is just going to be chaos.
ICANN believes it is helping people have more choice about their
internet addresses, but it looks as though for businesses, the
change couldn't be worse.
It is no longer enough in academia to come up with a theorem you
can name after yourself or get a couple of articles into nature
magazine. Technology transfer is everything or would be in Europe
if we were any good at it. The European Commission has told
universities to smarten up their act and turn more of their
thinking into marketable inventions.
Chris Martin of Pinsent Masons, the law firm behind OUT-LAW, is
an expert in technology transfer from the academic to the
commercial world. He says the Commission needn't worry about
Britain, which has long learned the commercialising lessons of US
universities. In fact, he says, the Commission is ordering the rest
of Europe to be more like us.
Chris Martin: The US have been doing this
longer than anyone else and they have quite a sophisticated
approach to knowledge transfer but the UK is not really that far
behind in terms of the professionalisation of that sector. So I
think the Commission is really looking for some of the other
countries in Europe to adopt similar approach as happens in the UK.
What they are saying actually reflects what happens in practice in
the UK in most cases. There are very few of the recommendations
which do not reflect what a well run research intensive university
in the UK is doing already.
So what does the UK do that the Commission wants replicated
across the continent? They want clarity about who owns any
commercialised intellectual property, they want proper analysis and
reporting of attempts to commercialise and the results, and they
want the kind of professionalisation of the process that is common
in the UK and the US.
Martin said that it is no surprise that the Commission wants to
encourage the creation of valuable intellectual property out of
academic research.
Chris Martin: The bottom line is Europe
directly through say the framework research and development
programmes, Framework 7 we're on now, and indirectly monies which
go through national governments, fund a huge amount of R&D. So
they are a massive funder of research and development. And that is
because they see the knowledge economy, the development of a
knowledge economy and information society as key to the success of
the European Union moving forward. So the Commission put all this
money in and I think what they are saying is that what is coming
out, the outputs of that in terms of say socio economic benefit do
not necessarily justify the investment.
But before anyone gets het up about the debasing of admirable
academic ideals, Martin says that this is not a crass money making
exercise, but that the process of commercialisation is valuable
because of the wider benefits it brings to an academic, a
department, a university and even a local economy.
Chris Martin: But it is not really a money
making exercise in its true sense. The financial terms are often
low. In most cases in fact it will be less than the investment that
the institute puts into those knowledge transfer activities. The
real key driver is the socio economic benefits so basically getting
the technology out of the lab and into the wider world to do good
in the wider world. And clearly that can have impacts in terms of
the local economy as well with regard to the relevant research
institution. So it creates jobs. It can aid in prosperity and so
forth.
That's all we have time for this week, thanks for listening.
Why not get in touch with OUT-LAW Radio? Do you know of a
technology law story? We would love to hear from you on radio@out-law.com.
Make sure you tune in next week; for now, goodbye.
OUT-LAW Radio was produced and presented by Matthew Magee for
international law firm Pinsent Masons.
