South Africa: It's "No" To .Polo

Last Updated: 6 December 2013
Article by Gaelyn Scott

Most Read Contributor in South Africa, September 2016

We've written about the new Generic Top Level Domains (gTLDs) on more than one occasion.  This refers, of course, to the process whereby companies and organisations can register names – generic words, geographical names, brand names - as top level domain names. So, in the same way that there's long been .com, .net and .info, you can now have .bank, .google and .capetown. Some 1900 applications have already been filed.

In a previous article we discussed the Trademark Clearinghouse, the system that was created to allow trade mark owners to get preferential registration for their trade marks under the various new gTLDs, and to get notification of conflicting applications. In another article we discussed the fact that the company Amazon had run into problems with its application to register .amazon, because South American countries like Brazil and Peru had, through a Government Advisory Committee, declared this to be a 'problematic' application, because the Amazon does represent a significant geographical region - the matter was apparently not dealt with as an ordinary objection but at a political level. We also mentioned that this was not the first time such an objection was raised - the company Patagonia was persuaded to withdraw its application for .patagonia by Argentina and Chile.

Allowing companies to monopolise words that have meanings that go beyond the products they're applied to was always going to cause problems.  One such problem came to light when Ralph Lauren applied to register .polo – Polo is, of course, a well-known brand of Ralph Lauren. But the word 'polo' does of course signify more than just clothing.  And no, I'm not simply referring to holey mints and entry-level hatchbacks, but to a sport that some might consider elitist. So it came to pass that the United Stated Polo Association (USPA) - the governing body of the sport of polo in both the USA and Canada – objected to Ralph Lauren's application to register the gTLD .polo.  The USPA filed what is known as a 'community objection'. In order to succeed in a community objection, the objector needs to prove four things, namely:

  • that the community objecting is clearly delineated;
  • that a substantial portion of the community objects;
  • that there is a strong association between the community and the gTLD in dispute; and
  • that the gTLD creates a likelihood of material detriment to the interests of the community.

The objection was upheld, with the panel finding that all four requirements had been met. First, the fact that there were a number of similar bodies for the sport of polo, including an international body called the Federation of International Polo (FIP), meant that there was a clearly delineated community.  Second, even though not  many of these  bodies had aligned themselves with the objection,  FIP had done so, which suggested to the panel that a substantial portion of the community was opposed to the gTLD - the panel basically seems to have regarded the objector as being a representative of the global polo community. Third, the panel felt that because 'polo' was the name of the sport that the community promoted, the name was bound to be associated with Ralph Lauren's gTLD. Finally, the panel found that,  because Ralph Lauren would be able to  operate .polo in whatever manner it chose -  for example in a closed manner, refusing to allow  members of the polo community to register 2nd-level names under .polo -  the registration would be detrimental to the polo community. The panel made the point that having the name monopolised by Ralph Lauren could potentially shut out an entire community which was totally dependent on the name 'polo'. This would not only cause confusion on the Internet,  but it would reduce the community's  Internet presence and hamper its ability to promote itself – the panel made a point of saying that the sport might struggle to attract sponsors. The panel said that the USPA had proved to its satisfaction that registration of .polo would cause 'damage for a significant portion of the community it represents'.

This decision does suggest that quite a few companies whose brand names have other meanings may encounter difficulties. It suggests that adjudicators might be quite willing to accept that a clearly discernible community exists, and that most of that community is opposed to the registration of the gTLD.  The requirement of establishing that a strong association exists between the community and the gTLD does not seem to be a problem at all. Nor does the requirement of establishing material detriment – one wonders if an undertaking not to adopt a closed policy would be accepted!

Enquiries conducted at the time of writing this article, however, show that a number of community objections have failed – those against .fly, .gay, .halal, .islam, .persiangulf, .reisen and .shop.  The only ones that have succeeded are those against .polo, .architect and .sport – the last one was apparently opposed by an organisation representing 107 sports federations. In a related development, the Internet Association for Assigned Names and Numbers (ICANN) has suspended applications for some 90 generic names, including the one for .amazon.

This is an ever-evolving area of the law. Interesting times lie ahead!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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