FTC - Re: [ncdnhc-discuss] Re: Why is "Marketing ccTLDs as generics" onNC Agenda?

Michael Froomkin - U.Miami School of Law froomkin at law.miami.edu
Fri Oct 5 01:40:40 CEST 2001


Given how the FTC got its fingers badly burned the last time it tried
anything of the sort, I think it's a fairly safe bet that it won't be
doing it again without an airtight case.  And this isn't it.

Cf. Weird Doings at the FTC: Shoddy 'Consumer Alert' Appears, Vanishes,
http://www.icannwatch.org/article.php?sid=157

I discussed this issue with one of the FTC commissioners at the time, and
it seems quite clear to me they've got the message its a swamp they don't
understand...

On Thu, 4 Oct 2001, Derek Conant wrote:

> You should know that the FTC advertising practice jurisdiction allows
> the FTC to engage organizations that advertise products or services that
> appear similar to a known standard, when such products or services are
> not the same as that expected by the consumer.  
> 
> Regardless of an organization's disclaimers or disclosures, you should
> know that the FTC has broad jurisdiction in defining an organization's
> advertising or marketing practices as it relates to how a consumer may
> perceive products or services.
> 
> Regardless of disclaimers or disclosures, it may not be clear to the
> average consumer that New.net and its ilk are *not* the same as gTLDs
> and ccTLDs until after the transaction.  My guess is that time will tell
> if this is the case and it will probably be the FTC who decides. 
> 
> One significant problem facing ICANN may be the issue of consumer
> confusion (if consumer confusion exists concerning New.net and its ilk).
> 
> Derek Conant
> DNSGA President and Chairman
> 
> 
> "Michael Froomkin - U.Miami School of Law" wrote:
> > 
> > I agree that the distinction between new.net and its ilk and a genuine
> > alternate root is well taken.
> > 
> > What I don't understand, given that new.net is in fact part of the legacy
> > root and all its subdomains are at the fourth level, what this has to do
> > with ICANN.  If it were the case that new.net was not forthcoming in its
> > disclosures there might be an issue under national law for false
> > advertising or deceptive trade practice, but having looked at its web
> > pages I'd guess there's no shadow of a chance of making a claim of that
> > sort since they do in fact disclose everything quite frankly in their FAQ
> > and elsewhere.
> > 
> > So, my question is: what in fact is there to discuss?  The only thing I
> > can think of is whether the fact that someone would pay new.net for a
> > product vastly inferior to a genuine legacy SLD is evidence of such
> > pent-up demand that ICANN should quickly create lots of new TLDs.  But I'd
> > wager that isn't what V.Martinez has in mind, or is it?
> > 
> > On Thu, 4 Oct 2001, Vany Martinez wrote:
> > 
> > > Jonathan:
> > >
> > > I have never asked to talk about Alternate Roots.
> > > Again this was another confusion from who draft the
> > > agenda.
> > >
> > > Let call with proper names the things:
> > > 1.  An Alternate Root involves a server independent
> > > from the actual roots that is resolving TLDs (.TRAVEL,
> > > ..GAME, .KIDS, etc, for example) different than the
> > > ones created by ICANN, without using any technology of
> > > masquerading an existent domain name within the actual
> > > existent TLDs (.COM, .ORG, etc...).
> > >
> > > 2. The subject I am addressing is not Alternate Roots.
> > > The subject I am addresing is the launching of
> > > services as New.net and other Companies that uses and
> > > masquerades actual domain names inside TLDs as .ORG,
> > > COM, etc...in order to provide domain names inside
> > > TLDs as .TRAVEL, .GAME, .KIDS, etc... If New.net want
> > > to call themselves an Alternate Root, then is a bad
> > > definition because they are functioning under the
> > > actual Roots, maquerading existent domain names as we
> > > know them to provide new TLDs, etc...And, such TLDs
> > > are not resolved by everybody...only those who has the
> > > software they download or the ISP has upgraded their
> > > networks by adding some lines to their DNS
> > > configuration, are the ones that are able to resolve
> > > such domain names.
> > >
> > > I hope this clarify more to you and everybody, what I
> > > am talking about.
> > >
> > > And, of course, comments are welcome.
> > >
> > > Best Regards
> > > Vany
> > >
> > >
> > > --- Jonathan Weinberg <weinberg at mail.msen.com> wrote:
> > > > Vany --
> > > >
> > > >          I'm not sure I understand this.  I gather
> > > > that you've asked for
> > > > ten minutes during the NC teleconference to talk
> > > > about alternate roots
> > > > (specifically, new.net).  What, exactly, is it that
> > > > you want to say about them?
> > > >
> > > > Jon
> > > >
> > > >
> > > > At 06:41 AM 10/4/2001 -0700, Vany Martinez wrote:
> > > > >Hi William:
> > > > >The title of the agenda was a misunderstanding of
> > > > >Philip about the subject I want to talk about.
> > > > >The changes will be posted soon.
> > > > >The title of such agenda item will be:
> > > > >"TLDs not created by ICANN: an attempt to expand
> > > > the
> > > > >domain name space or creates confusion."
> > > > >As you may know, there are some companies that are
> > > > >marketing TLDs as .TRAVEL, . GAMES, .KIDS, etc, and
> > > > >what they really do is to masquerade an actual
> > > > domain
> > > > >in order to resolve domains under such TLDs.  This
> > > > >means that only the users that has the proper
> > > > software
> > > > >or the users under an ISP that has setted up their
> > > > >networks to resolve such domain names, will be able
> > > > to
> > > > >resolve such names.
> > > > >This affects all sectors in some way of
> > > > another...What
> > > > >the NCDNHC will do if an organization applies to be
> > > > a
> > > > >member of the NCDNCH and when we ask them what is
> > > > your
> > > > >domain, they answer something like:
> > > > >myorganization.NGO ?
> > > > >How can we protect the rights of the non-commercial
> > > > >sector that is ignorant of what's going on.
> > > > [snip]
> > > >
> > > > _______________________________________________
> > > > Discuss mailing list
> > > > Discuss at icann-ncc.org
> > > > http://www.icann-ncc.org/mailman/listinfo/discuss
> > >
> > >
> > > =====
> > > Nilda Vany Martinez Grajales
> > > Information Technology Specialist
> > > Sustainable Development Networking Programme/Panama
> > > http://www.sdnp.org.pa e-mail: vany at sdnp.org.pa
> > >
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> > 
> > --
> >                 Please visit http://www.icannwatch.org
> > A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> > +1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
> >                  -->It's very hot and humid here.<--
> > 
> > _______________________________________________
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> > Discuss at icann-ncc.org
> > http://www.icann-ncc.org/mailman/listinfo/discuss
> 

-- 
		Please visit http://www.icannwatch.org
A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
                 -->It's very hot and humid here.<--




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