FirstNational.bank? – Coming to a Website Near You
By: CAROLINE G. CHICOINE & BENJAMIN TOZER, SUMMER ASSOCIATE
September 2011
You are probably familiar with .com, .org, and .net. But have you heard of .bank? Chances are you will when ICANN, the Internet Corporation for Assigned Names and Numbers, expands the domain name space in 2012. While most banks will not be applying to operate the top-level domain .bank, there will likely be interest in registering domain names within this space at the second level (e.g., FirstNational.bank).
ICANN is the nonprofit entity responsible for operating and managing the domain name system, which began with seven generic top-level domains (gTLDs) such as .com, .org, and .net. ICANN has already gone through small expansions of the gTLD space in 2000 and 2004 resulting in such additional extensions as .biz, .info, and .mobi. ICANN is now on schedule for an unprecedented expansion of the gTLD space in 2012. ICANN is currently scheduled to begin taking applications for new gTLDs (including .bank) in January of 2012 and is expecting several hundred applications. The application period will be open for three months (until April 12, 2012), and ICANN expects to publish the results of its Initial Evaluations of applications in November of 2012. While the $185,000 application fee and 200-page application will deter many from applying for a new gTLD, there is otherwise very little keeping an entity from applying for whatever gTLD they would like to create. For example, if the International Hotel & Restaurant Association applies for .restaurant and its application is accepted by ICANN, then presumably restaurants like McDonald’s could apply to register the domain name mcdonalds.restaurant.
Clearly, a gTLD like .bank creates some unique issues. Banks are highly regulated institutions, not only in the U.S. but also abroad. A company cannot simply call itself a “bank” and open its doors for business. In the right hands, such a gTLD could create greater consumer trust and confidence. In the wrong hands, .bank could lead to increased fraud and consumer confusion online.
The process of applying for a new gTLD is governed by the Applicant Guidebook, which includes a series of questions and the criteria by which the applicant’s answers will be evaluated in order to determine whether the applicant is operationally, technically, and financially capable of running the applied-for gTLD. If ICANN fails to select the right party, there most certainly will be fallout, especially for consumers who put their trust in such a gTLD. BITS, the technology policy arm of the Financial Services Roundtable, has indicated its interest in operating the .bank gTLD and has publicly announced its willingness to litigate the issue, leaving open the question as to whether federal regulation or legislation will be pursued.
Assuming a .bank gTLD is rolled out, how does a financial institution get a domain name registered in this space? Since ICANN has yet to award the .bank contract, the precise requirements to receive domain names in the .bank space are unknown. However, entities that can show trademark rights to a particular name they wish to register will likely have preferential treatment over those that cannot. For example, in many of the previous rollouts, trademark owners have been given what is known as a “Sunrise” period during which they can pre-register second-level domains in a gTLD before the official launch to the public. Thus, assuming the .bank gTLD is granted, banks may have an opportunity to pre-register and increase the chance of successfully registering desired .bank domain names. Moreover, when deciding disputes between conflicting rights in a domain name under the Uniform Domain-Name Dispute-Resolution Policy (UDRP), entities that can demonstrate prior trademark rights in a particular domain name have the upper hand. As a result, banks will benefit from reviewing their trademark portfolios and considering what second-level domain names they may wish to register should the .bank gTLD be granted.
Takeaway
While the fate of a .bank gTLD has yet to be determined, banks should monitor the process so they can best take advantage of the opportunities a .bank gTLD may bring them. If you would like to receive updates on the .bank domain, please register for the .bank TLD mailing list at www.fredlaw.com/register.cfm.