Introduction

A brand has to be linked with a business strategy. The brand strategy must support the business strategy. As observed by Kotler, marketing thinking should not begin with a product or a product class but with a need.1 The management of the components which make up the brand is vital in a competitive economy.

This program was designed to look at responses to the evolution of the Internet and social media from a brand management perspective. Today we will hear about the following key issues  

The New Generic Top Level Domain Names (gTLDs) and Their Implementation

Responding to Criticism or Gripe Sites

Dealing with Cybersquatters

Keyword Advertising and Its Legality

Protecting and Managing Domain Names

Social Media: Brand Protection Problems and Solutions

Monitoring the Web to Protect Your Brand

Web Licensing Issues: Terms and Conditions of Access to Online Pages  

Before we hear about these issues I would like to provide some background comments.

The Internet

“The explosion of the internet and the rapid development of online commerce has had a significant impact on branding. As it has developed the internet has changed from an instrument primarily used to exchange ideas and information to a means to sell goods and services. Notwithstanding some initial turbulence the internet will continue to play a major role in the world economy.

The importance of brands is heightened on the internet since consumers will be more likely to rely on and trust a strong brand to give them confidence to make online purchases. Where neither face to face interaction nor an opportunity to inspect the goods are possible a trusted brand is vitally important.2”

Still holds true today.

Social Media

When Marshall McLuhan observed “the medium is the message” in 1964, he could not have possibly envisioned today’s social media environment instantly and seamlessly connecting over 500 million Facebook users, 65 million daily tweets, 126 million bloggers, and over 150 million smartphones.3

  Social media has become a widely used tool to deliver brand messages. A brand owner needs to establish a method of controlling and protecting its brands and trade marks.

Domain Names

Domain names are the alpha numeric text strings to the right of the “@” in an email address or immediately following the two slashes in a web address. 

By convention the domain name specifies an Internet protocol (IP) number consisting of a network address and a host ID on a TCP/IP network. The IP numbers play a critical role in addressing all communications over the Internet.

Because the IP numbers are difficult to remember, alpha numeric domain names were introduced as mnemonic.  When an individual types an alpha numeric Uniform Resource Locater (URL) into a web browser, the host computer translates the domain name into an IP number. Since IP numbers can be arbitrarily assigned to domain names the names can remain constant even when the resources to which they refer change. The domain naming conventions treat a domain name as having three parts. For example in the address www.casselsbrock.com, the “.com” is the Top Level Domain or (TLD) while “casselsbrock” is the Second Level Domain (SLD). Any additional reference is treated as a third or higher level domain.  

The legacy root, the most widely used list of TLDs which will actually map to IP numbers, is currently made up of over 250 two letter country code TLDs (ccTLDs) and  22 gTLDs including three letter generic TLDs such as .com, .net, .org, .biz and a number of four letter TLDs including .arpa, .info, .name, .aero, .coop and .museum. The ccTLDs are primarily derived from the International Organization for Standards (IOS) Standard 3166 and include .ca for Canada and .us for the United States among others.

In 1992, Network Solutions Inc., a public company, became responsible for the operation of the system including registration of domain names in the .com, .net and .org registries. Until 1998, Network Solutions was the sole registrar and administrator of the commercial gTLDs.

As a result of dissatisfaction with this system, the US Department of Commerce initiated a consultative process that resulted in the creation of the Internet Corporation for Assigned Names and Numbers (“ICANN”) to manage the Internet name and address system. Among other things, ICANN opened up the domain name registration market to competition and implemented a Uniform Dispute Resolution Policy (“UDRP”) to resolve disputes between competing domain name claimants.

The new gTLDS

The basic structure of Internet naming is likely to undergo its most significant change since its inception—and the implications for users and global corporations are extensive. ICANN, is implementing a plan which, will allow for an unlimited number of new generic Top-Level Domains.

Brand owners need to develop a strategy for responding to these changes.  

Jurisdiction

It has been difficult to apply the concept of jurisdiction to the Internet, since, as it is frequently said, the Internet knows no boundaries. 

More specifically, when advertisements or other statements containing representations or referring to trade-marks and copyright material are reproduced on a website which is available to consumers, it must be determined which court has jurisdiction with respect to potential disputes.  

To the extent that a website is interactive and can be accessed by consumers outside of Canada, it is prudent to ensure that it complies with the relevant laws in force in the jurisdictions in which those consumers are physically located. This includes intellectual property laws relating to trade-marks and patents, consumer protection legislation, product liability claims and claims for defamation.   

Different website owners/operators have dealt with this potential liability in different ways. Some parties have not dealt with the issue at all. Presumably, they feel that if such claims arise, at least in a consumer context, they can be dealt with like any other consumer complaint without the necessity of any special legal response. In addition, to the extent that they are the subsidiaries of US companies, they will not be faced with trade-mark problems, since the marks they use have typically been registered in multiple jurisdictions.  

On the other hand, other website owners/operators attempt to control the terms and conditions upon which they conduct business through their website. In effect they require consumers who do business with them to accept that the law and/or jurisdiction specified by the website owner/operator will apply.

These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.