Predictions 2018 – 20

December 20, 2017

As I predicted last year, 2017 was a time of contemplation
as far as the ICANN New generic Top Level Domain (gTLD) Program was concerned,
and this will continue on into 2018 as ICANN liaises with the Competition,
Consumer Trust and Consumer Choice (CCT) Review Team, appointed to assess the
extent to which the introduction of new gTLDs has promoted competition, consumer
choice and consumer trust in the Domain Name System (DNS) and the effectiveness
of both the application processes and the safeguards put in place to combat
abuse (such as the rights protection mechanisms used by brand owners). Given
this period of reflection, the next application round is widely predicted to be
in 2020 at the earliest. However, I predict that in 2018 companies will start
to use their .BRAND TLDs in much more visible and innovative ways, meaning that
participation in the next round will become essential for those that have yet
to take the plunge, and we will see an increasing number of high-value sales of
new gTLDs as their use goes mainstream and companies realize that acquiring a
shorter, punchier new gTLD may make more sense than a longer and more expensive

On the downside, WIPO announced in March 2017 that
cybersquatting had hit an all-time high, likely driven by the huge increase in
new gTLDs (around 23.5 million domain names have now been registered under
approximately 1,200 new gTLDs), and this trend is set to continue, keeping
brand owners on their toes and forcing them to consider new strategies as
defensive registrations become less of a viable option. Having said this,
country code Top Level Domains (ccTLDs) are still big business, with over 20
million domain names registered under .CN (China) alone. This increase in the
use of ccTLDs may be due to a number of factors, for example many Registries
have relaxed their eligibility requirements in recent years, meaning that a
local presence and/or a local trade mark is no longer necessary to register a
domain name, and a number have launched registrations directly at the top level
(for example registrations directly under .UK are now possible, as opposed to
.CO.UK at the second level). This trend will run on in 2018 with .AU
(Australia) planning to open registrations directly under .AU soon (this will
be no easy task, as demonstrated by the complex allocation rules applied by
other ccTLDs to deal with competing rights at the second level).

The increasing popularity of so called ‘domain hacks’ (where
the entire domain name may be read as one word or phrase, for example
<>) is set to continue, and has certainly served many lucky ccTLDs
well (Montenegro’s use of .ME is particularly innovative). However, increases
in other forms of trickery, such as homograph spoofing, are far less welcome
for brand owners: the increase in Internationalized Domain names (IDNs) using
characters outside of those used in traditional English has meant that
malicious registrants have been able to include look-alike characters from
other languages to register domain names that are almost visually
indistinguishable from those of established brands and put them to fraudulent
use (for example as email addresses). Unfortunately, with the globalization of
the internet, this is a phenomenon that we are likely to hear more of in 2018.

Finally, I predict that the debate that is currently raging
within the domain name community on the impact of the GDPR on Whois will
continue into 2018 and beyond, but hopefully any eventual solution will permit
the continued efficiency of brand protection online.

Jane Seager is a
Partner at Hogan Lovells (Paris) LLP