[NCSG-Discuss] Closed Generics - a letter together

Kathy Kleiman kathy at KATHYKLEIMAN.COM
Sun Feb 24 16:44:11 CET 2013


Dear Alain and All,
I have a question. Who would like to work with me on a statement of 
individuals and organizations within the NCSG? Obviously, we don't have 
consensus and this will not be a Stakeholder Group statement, but there 
seem to be a lot of us with similar concerns - across NPOC and NCUC. And 
further, the issue of generic words used in generic ways is a classic 
noncommercial issue. It's the balance to trademark law...

If you are interested in reviewing a statement or letter, please let me 
know, and we'll create a subgroup.
If anyone would like to work with me on crafting  a statement or letter, 
welcome!

Best,
Kathy

:
> Hi,
>
> I personnally lean heavily in favor of Kathy's position. It seems 
> quite reasonable to me for IBM, Accenture, Suzuki or Aga Khan 
> Foundation (AKDN for AK Development Network)  and many others to use 
> their closed gTLD for internal purposes but pure generic words belong 
> to everybody, period. So even AFAMILYCOMPANY applied for by Johnson 
> Shareholdings Inc would affect not only the use of "family" by all but 
> also discriminate against many others such as perhaps the millions of 
> family-owned companies!
>
> Bill, I think the "Closed Generics" theme is big enough that it 
> warrants an NCSG-wide approach in Bali with distinctive NCUC and NPOC 
> events or sessions on different themes our respective Program Teams 
> are probably working on right now.
>
> Alain
>
>
>
> On Mon, Feb 11, 2013 at 9:10 AM, William Drake <william.drake at uzh.ch 
> <mailto:william.drake at uzh.ch>> wrote:
>
>     Hi
>
>     So there's clearly a diversity of views on this issue among
>     reasonable people.  This was also evident at the IGF meeting in
>     Baku, where we spent some time on it in the context of a wider
>     discussion of new gTLDs in the Critical Internet Resources main
>     session (I co-moderatated, Milton spoke to the issue, as did
>     Anriette Esterhuysen from NCUC member APC, the Brazilian
>     ambassador, others... http://webcast.igf2012.com/ondemand/.)
>
>     For this year's IGF in Bali, Alain and I discussed the possibility
>     of proposing a joint NPOC/NCUC Open Forum session, and in addition
>     the two constituencies could each organize their own workshops
>     reflecting their respective priorities and possibilities.  In this
>     context, I'm wondering whether closed generics might not be a good
>     topic for a NCUC workshop.  We could easily get a solid MS panel
>     together with strongly diverse views that would probably be of
>     interest to the sort of broader, non-GNSO-insider audiences IGFs
>     attract. I can already think of a number of developing country
>     government, business, technical and CS folks who'd likely be eager
>     to participate as speakers, and it's a nicely bounded problem set
>     that'd lend itself to focused consideration of commercial and
>     noncommercial arguments etc.
>
>     After we get past the WSIS+10 and IGF meetings in Paris I may
>     pitch the Program Team a formal proposal on this.  If anyone would
>     like to conspire, let me know.
>
>     Bill
>
>     On Feb 10, 2013, at 7:17 PM, Kathy Kleiman <Kathy at kathykleiman.com
>     <mailto:Kathy at kathykleiman.com>> wrote:
>
>>     Hi Edward and All,
>>     I've been meaning to write for some time about Closed Generics. 
>>     Since 1996, I've been fighting the abuse of generic words. The
>>     first huge domain name dispute battles took place over generic
>>     words - that trademark owners felt they could use their
>>     trademarks (which is, of course, a limited right to use a term
>>     for a specific category of goods and services) to stop ordinary
>>     people, organizations and entrepreneurs from using ordinary words
>>     in ordinary ways. We led a huge fight with Network Solutions, and
>>     then at the dawn of ICANN, to draft Domain Name Dispute Rules
>>     that protected generic words used in generic ways as part of the
>>     public domain -- as belonging to us all!
>>
>>     So when I see so many applicants for "Closed Generic" New gTLDs
>>     -- using a generic word in a generic way and completely
>>     monopolizing it by *not* allowing your competitors to use it too,
>>     I am shocked: .APP, .BOOK, .CLOUD, .DRIVE, .MAP, .MOVIE, .NEWS,
>>     .SEARCH, .SHOP. .STORE, .BLOG, .ANTIVIRUS, .INSURANCE, .HAIR,
>>     .MAKEUP, .BABY -- These are generic words being used in generic
>>     ways (according to their applications) for the sole purpose of
>>     monopolizing the common term of an industry or business -- and
>>     keeping its competitors out.
>>
>>     There is no way that L'Oréal could get trademarks on .SKIN,
>>     .SALON, .MAKEUP and .HAIR, as these words are part of the public
>>     domain name and available to All their competitors to use --
>>     their trademarks are on MAYBELLINE, REDKIN, L'Oréal, and the
>>     share the generics as common descriptive terms. So it is against
>>     every public interest bone in my body to allow generic words used
>>     in generic ways to be monopolized by only one business or
>>     industry player.
>>
>>     But is it against the rules?  I went back to my work as Director
>>     of Policy for .ORG, as I was with .ORG through the end of the
>>     Applicant Guidebook work. I served on the Vertical Integration
>>     Working Group in a very active way, as well as the Registries
>>     group that reviewed every line of the "Base Registry Agreement"
>>     (the model contract for all new gTLDs).  We had agreed that, in
>>     general, the base model of a Registry is "open" -- that
>>     Registries must work with ICANN-Accredited Registrars worldwide. 
>>     Why?  To reach Registrants worldwide -- to offer them domain
>>     names in their own languages, currencies and customs. /(For
>>     example, NII Quaynor, a founder of NCUC and early Board member,
>>     is now one of the few Registrars in Africa, and equal access of
>>     his Registrants to domain names, on a nondiscriminatory basis,
>>     has always been important to our system). /
>>
>>     So no, I found that we had NOT agreed to Closed Generics. In
>>     fact, the base model of the New gTLD Registries was meant to be
>>     "open" -- and ICANN incorporated this "Open gTLD" model into its
>>     Base Registry Agreement (in the Applicant Guidebook). Section
>>     2.9a and the Registry Code of Conduct. No Registry may favor a
>>     particular Registrar -- but provide Equal Access to its Registry
>>     Services and Data. Why?  To be fair to Registrants!  It's nowhere
>>     written that Verisign can't limit .COM domain names only to the
>>     NY Stock Exchange companies, or that .ORG can't limit .ORG
>>     registrations to only US organizations, but everyone knows if
>>     they did that, they would lose their accreditation with ICANN.
>>     /Non-discrimination and Equal Access are part of our domain name
>>     DNA. /(See "Base Agreement & Specifications", Specification 9,
>>     http://newgtlds.icann.org/en/applicants/agb).
>>
>>     The initial Registry Code of Conduct had _no_ exceptions.  Then
>>     the Commercial Guys got upset-- why should a Dot-Brand TLD, e.g.
>>     .IBM, have to go through registrars to register domain names, and
>>     why should they have to register names to the public anyway?
>>     (Arguments also made in the Vertical Integration WG.)  Special
>>     privileges for very limited use New TLDs - let IBM keep its
>>     domain names for its employees, franchisees, etc.  And frankly,
>>     most of us agreed.  So the next version of the Registry Code of
>>     Conduct came out with a narrow exception:
>>
>>         ==> "6. Registry Operator may request an exemption to this
>>     Code of Conduct, and such exemption may be     granted by ICANN
>>     in ICANN’s reasonable discretion, if Registry Operator
>>     demonstrates to ICANN’s reasonable satisfaction that (i) all
>>     domain name registrations in the TLD are registered to, and
>>     maintained by, Registry Operator for its own exclusive use, (ii)
>>     Registry Operator does not sell, distribute or transfer control
>>     or use of any registrations in the TLD to any third party that is
>>     not an Affiliate of Registry Operator, and (iii) application of
>>     this Code of Conduct to the TLD is not necessary to protect the
>>     public interest."
>>
>>     It had a comment that made its intent very clear:
>>         ===> [*Note: This draft Section 6 of the Registry Operator
>>     Code of Conduct has been added in response to comments received
>>     that suggested that the Code was not necessary for registries in
>>     which a single registrant uses the TLD solely for its own
>>     operations and does not sell registrations to third parties (e.g.
>>     a dot-BRAND)]
>>     (http://archive.icann.org/en/topics/new-gtlds/draft-agreement-specs-redline-15apr11-en.pdf)
>>
>>     And that's where we left it. Of course, some people in the
>>     Vertical Integration WG wanted much more, and some of them are on
>>     this list. And some wanted much less- that all gTLDs be open. The
>>     compromise was to allow dot-BRANDs to be closed, but certainly
>>     not any string any applicant wanted for any reasons. Generic
>>     words used in generic ways belong to everyone in the industry or
>>     business :-).
>>
>>     I look forward to our discussion, and happy to provide links
>>     letters and public comment forums.
>>
>>     All the best,
>>     Kathy
>>     p.s. Quick additional note on "restricted TLDs."  In case anyone
>>     is wondering, "restricted TLDs" are generally OK among those
>>     deeply concerned about Closed Generics because restricting .BANK
>>     to real banks or .LAWYER to lawyers with actual credentials seems
>>     consistent with non-discrimination and equal access provisions --
>>     provided the criteria and fairly and globally applied...
>>
>>
>>     Edward Morris wrote:
>>
>>
>>     :
>>>     Kathy,
>>>
>>>     I am sympathetic to your position. My concern is that any change
>>>     now to the program will embroil ICANN in mass litigation that
>>>     will paralyze the organization for a considerable period going
>>>     forward. We briefly spoke in Los Angeles about some recent legal
>>>     hires by Amazon: some pretty impressive hires. Can you convince
>>>     me that my concerns are invalid? Might not a better approach at
>>>     this point be to pressure the applicants themselves to open up
>>>     the generic domains,  to make it socially unacceptable for large
>>>     companies to operate closed Tlds?
>>>
>>>     Ed
>>>
>>>
>>>
>>>     On Wed, Feb 6, 2013 at 8:26 PM, Kathy Kleiman
>>>     <kathy at kathykleiman.com <mailto:kathy at kathykleiman.com>> wrote:
>>>
>>>         Quote from Jeff Neuman (VP Neustar) in Amsterdam last week:
>>>         /*Nearly all of those applying for Closed gTLDs would fail
>>>         to qualify based on his reading of the Code of Conduct. *//*
>>>         */
>>>         Article show concern around the world for TLDs which are
>>>         generic strings/words of an entire industry or business
>>>         (DOCS, BOOK, SEARCH, ANTIVIRUS, WATCHES) being dominated and
>>>         controlled by a single industry/business (and only one of
>>>         many competitors).  that's being a registry to monoplize a
>>>         word, not to offer registry services.
>>>
>>>         -    The Hindu:  Beauty lies in the ‘domain’ of the highest
>>>         bidder (Op-ed piece by Parminder Jeet Singh, Executive
>>>         Director, IT for Change, in special consultative status with
>>>         the United Nations Economic and Social Council (IGF
>>>         attendee)), 12/24/2012,
>>>         http://www.thehindu.com/opinion/op-ed/beauty-lies-in-the-domain-of-the-highest-bidder/article3929612.ece
>>>
>>>
>>>         -    Forbes: The Battle For The Cloud: Amazon Proposes
>>>         'Closed' Top-Level .CLOUD Domain, 11/6/2012,
>>>         http://www.forbes.com/sites/reuvencohen/2012/11/06/the-battle-for-the-cloud-amazon-proposes-closed-top-level-cloud-domain/?partner=yahootix
>>>
>>>
>>>         -    Techworld: Problems arise where one entity is seeking
>>>         exclusive use of strings with broad applicability,
>>>         11/21/2012,
>>>         http://news.techworld.com/networking/3412616/icann-issues-early-warnings-over-controversial-top-level-domains/
>>>
>>>         I am deeply, deeply concerned!
>>>         Best,
>>>         Kathy
>>>
>>>
>>>>         A quote from Karen Lentz (ICANN legal staff): "Under the current rules, there's nothing that would prevent the use of closed generics, which is focused on the issue of who can register a name."
>>>>
>>>>>         -----Original Message-----
>>>>>         From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On Behalf
>>>>>         Of William Drake
>>>>>         Sent: Tuesday, February 05, 2013 1:18 PM
>>>>>         To:NCSG-DISCUSS at LISTSERV.SYR.EDU  <mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU>
>>>>>         Subject: [NCSG-Discuss] new-gtld-committee-not-sure-how-to-handle-
>>>>>         closed-generic-applications
>>>>>
>>>>>         surprise!
>>>>>
>>>>>         http://www.thedomains.com/2013/02/05/icann-new-gtld-committee-not-
>>>>>         sure-how-to-handle-closed-generic-applications/
>>>
>>>
>>
>
>
>
>
> -- 
> Alain Berranger, B.Eng, MBA
> Member, Board of Directors, CECI, http://www.ceci.ca 
> <http://www.ceci.ca/en/about-ceci/team/board-of-directors/>
> Executive-in-residence, Schulich School of Business, 
> www.schulich.yorku.ca <http://www.schulich.yorku.ca>
> Treasurer, Global Knowledge Partnership Foundation, 
> www.gkpfoundation.org <http://www.gkpfoundation.org>
> NA representative, Chasquinet Foundation, www.chasquinet.org 
> <http://www.chasquinet.org>
> Chair, NPOC, NCSG, ICANN, http://npoc.org/
> O:+1 514 484 7824; M:+1 514 704 7824
> Skype: alain.berranger
>
>
> AVIS DE CONFIDENTIALITÉ
> Ce courriel est confidentiel et est à l’usage exclusif du destinataire 
> ci-dessus. Toute personne qui lit le présent message sans en être le 
> destinataire, ou l’employé(e) ou la personne responsable de le 
> remettre au destinataire, est par les présentes avisée qu’il lui est 
> strictement interdit de le diffuser, de le distribuer, de le modifier 
> ou de le reproduire, en tout ou en partie . Si le destinataire ne peut 
> être joint ou si ce document vous a été communiqué par erreur, 
> veuillez nous en informer sur le champ  et détruire ce courriel et 
> toute copie de celui-ci. Merci de votre coopération.
>
> CONFIDENTIALITY MESSAGE
> This e-mail message is confidential and is intended for the exclusive 
> use of the addressee. Please note that, should this message be read by 
> anyone other than the addressee, his or her employee or the person 
> responsible for forwarding it to the addressee, it is strictly 
> prohibited to disclose, distribute, modify or reproduce the contents 
> of this message, in whole or in part. If the addressee cannot be 
> reached or if you have received this e-mail in error, please notify us 
> immediately and delete this e-mail and destroy all copies. Thank you 
> for your cooperation.
>


-- 


-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ncuc.org/pipermail/ncuc-discuss/attachments/20130224/f9aea5d7/attachment-0001.html>


More information about the Ncuc-discuss mailing list