There’s a new gTLD[i] on the block, with “.kids” set to join the domain name landscape. After decades of countless new TLDs coming on the market, the .kids release is a genuine first – it’s the “only child-centric TLD on the internet”[ii]. This is not marketing hyperbole: the UN Convention on the Rights of the Child[iii] has been put at the heart of the domain’s governance.
The DotKids Foundation created this TLD to serve as a badge of trust, a collection of safe-spaces for kids online. The DotKids’ mission statement is “To create and foster an online space with kids’ best interest at heart”. However, good intentions doesn’t necessarily lead to good policy. With this new release there are clear dangers for children, DotKids, and brand owners alike. Brands and DotKids must take action, as responsible netizens, in order to protect the best interests of children. With the sunrise period set to open 11 August 2022, and general public availability towards the end of November, now is the time to act.
Not since the ‘adult themed’ TLDs (.xxx, .sex, .porn, .adult) has a new release so overtly targeted an area with such sensitivities. There are countless brands for a variety of reasons which do not want to be linked with anything adult themed, for example, most parents would not take too kindly in discovering an .xxx domain related to their child’s favourite cartoon show. The burden falls on brand owners to prevent this occurring. As a result, blocking mechanisms to prevent registration of certain domain names on the adult themed TLDs were put in place, thus avoiding non-compatible brands having to hold a portfolio of controversial domain names.
The .kids hazards are just as numerous. And many are just as obvious, for example, it would be remiss for a company which serves kids, say, a toy manufacture, to let a counterfeiter push knockoffs from a website using a core brand term of theirs within the domain name. A relevant TLD compounds customer confusion regarding origin of the product making the infringement all the more insidious. Far better to ringfence the brand through defensive registration than have customers fall victim to piratic commerce. Fortunately, ringfencing is usually the most cost-effective approach for protecting intangible assets. If, however, any domains do fall into the hands of cybersquatters, there are options such as UDRP[iv] or acquisition.[v]
An Unconventional Policy
The best of intentions does not always convert into the best policy drafting. Taking a closer look at DotKids’ policies raises an array of unintended consequences and inconsistencies. This partly stems from the Guiding Principles reliance on the UN Convention on the Rights of the Child. It’s difficult to translate a high-level charter into actionable governance, especially when the document in question dates back to 1989.
One glaring instance of outdatedness for example: Article 2 is the UN Convention’s anti-discrimination provision, the provision includes “sex” but does not include “gender”. A drafting point likely not considered relevant 30 years ago. DotKids did well to adapt the Convention to modern values by separating out sex and gender in their Guiding Principles.
An area DotKids did less well in adapting was Article 34 of the Convention. Article 34(c) has the regrettable language: “The exploitative use of children in pornographic performances and materials.”. The term “exploitative use” suggests there can be non-exploitative use, which of course, there cannot be. Furthermore, children cannot be involved in pornography, if it involves a child, it’s child sexual exploitation. DotKids would serve their own mission by delineating child sexual exploitation policies from those relating to pornography.
There are many policy choices which are likely to prove uncontroversial, amongst them the ban on content relating to child trafficking (presumably the ban applies to adult trafficking too), gross violence, gambling, and advertising tobacco, drugs, and alcohol. DotKids’ narrow approach to some of the above listed areas, in particular gambling, is very sensible given they operate at the registry level of the domain infrastructure. A broad-brush gambling provision would impede innovation in areas such as video gaming, which may otherwise have mechanics unintentionally caught under a restrictive gambling provision. After much fanfare about banning loot boxes in video games, the UK government recently u-turned on this counter-productive policy position.[vi]
Other DotKids’ policies, whilst sounding reasonable on first read, require a little more attention. Two key examples to demonstrate the point:
Brand Owners & DotKids Unite?
There is almost no mention of intellectual property rights within any of the DotKids policy documents. Clause 1.7 of the Guiding Principles does include copyright infringement as a sub-category of prohibited illegal content. There is no mention of trade marks, or any other intellectual property rights within the clause, nor the entire document. This concern is exacerbated by the Registry’s Anti-Abuse Policy not having a single mention of any intellectual property rights, not even the previously included area of copyright infringement. Brand owners can rely on UDRP for recovering .kids domains; and as per ICANN rules there will be mandatory IPR protection policies between DotKids and registrars selling .kids domains enforceable through the Registry-Registrar Agreement. However, the lack of IPR protection provisions within DotKids’ public policy documents appears to be a major oversight indeed. The protection of monopoly rights is often one of the strongest tools a brand owner has in order to safeguard their customers from knockoffs, abuses, scams, and fraud. With the right policies in place, brand owners can assist in policing the .kids infrastructure to keep it the safe-space of DotKids’ imagining.
What to do
[i] Generic Top-Level Domain