[Guest post] Release of the new top level domain ".gay": LGBTQ empowerment or undue exploitation?

The IPKat is happy to publish the following guest post by Katfriend Andrea Rossi (LA&P), who reflects on the implications of the newly released ".gay" top level domain. Here's what Andrea writes:

Release of the new top level domain ".gay": LGBTQ empowerment or undue exploitation?

by Andrea Rossi

The saga concerning the interconnection between IPRs and the LGBTQ community continues. The author previously examined the extent to which IPRs (or the lack thereof) might apply to the rainbow flag under copyright, design, and trade mark law (IPKat post here and forthcoming JIPLP article Authors' Take post here). In particular, it was examined whether IPRs could be employed to shield LGBTQ distinctive signs (such as the rainbow pattern) from commercial exploitation by those undertakings that free ride on the value and attractiveness of the LGBTQ community and its symbols.

Recently the author wondered again about this issue when he found out that, starting 16 September, it is possible for everyone to purchase the new Top Level Domain (TLD) “.GAY”.

Portland-based (USA) company Top Level Design developed the TLD “.GAY” to connect and celebrate LGBTQ communities and, according to the company’s policy for this TLD, to create a gay-friendly internet space banning harassment, hate speech and anti-LGBTQ contents that might appear within the “.gay” LTD webpages. The TLD is available for purchase at USD 41.62 per year with an additional USD 41.62 fee for a further one-year renewal (see here). The company stated that it will donate the 20% from the registration revenues to GLAAD and CenterLink. The beneficiaries might change after one year but, in the first LTD release, Top Level Design was able to donate USD 34,400 (see here).

In the vast sea of available LTDs, it seems that those that represent and are used for social purposes are provided and organised by non-profit organisations. For example, the “.org” LTD is made available by the Virginia-based Public Interest Registry which, like Top Level Design, collaborates with the Internet Corporation for Assigned Names and Numbers (ICANN). Similarly, the “.eu” LTD is disciplined by Article 9 of Regulation (Eu) 2019/517, which requires that “the Registry shall be a not-for-profit organisation”. Although it pledged to devote 20% of its revenues to organisations militating for the LGBTQ community rights, Top Level Design remains a for-profit company. 

Provided that the author welcomes and supports all the initiatives that raise awareness and foster LGBTQ acceptance, he also wonders the extent to which the LGBTQ symbols and commercial attractiveness should be exploited for commercial purposes (including the remaining 80% of the revenues from the “.gay” LTD business). Considering that the potential LGBTQ-related revenues are worth around USD 917 billion, the attractiveness of LGBTQ-derived products and services is becoming more and more evident and, to those who comprehended its value, exploited. 

In conclusion, since the LGBTQ community value and its commercial appeal among consumers has been increasingly rising, it may be argued that the time has come for providing further protection to the distinctive signs that compose the LGBTQ-related portfolio. For this purpose, IPRs may represent the most suitable tool. One possible solution might be to draft an international agreement that disciplines, among the signatory countries, the correct usage of the LGBTQ signs so to avoid undue commercial exploitation by undertakings that do not represent the LGBTQ values and merely free ride on such values for commercial purposes.