Closed New gTLDs - "Closed Gardens"

[Edward Morris]

I would take exception to the claim that allowing so called "closed garden"
gTLD's at all infringes upon nation states "entrenched legal processes" for
obtaining trademark protection.

It's usually brand owners I need to remind of what appears to be a little
recognized fact: domain names are not trademarks. Notwithstanding the fact
that brand owners want us to treat domain names as trademarks +, that some
UDRP mediators seem to buy this argument, that we're left fighting attempts
to establish extraordinary protection for famous marks...

Domain names are not trademarks. Nor are they sui generis i.p. marks. To
sign this letter indicates a belief that in some form they are and will
make it a be a bit more difficult in the futre to coherently fight efforts
by brand owners to further expand their monopoly rights in the domain
ecosphere.

The concept of a commons in generic terms may be admirable. The concept
stands alone and needs not and should not be linked to trademark rights.
Regrettably the time to make such an argument with regards to this round of
gTlds is in the past.


On Wed, Sep 5, 2012 at 8:17 PM, Kathy Kleiman <kathy at kathykleiman.com>wrote:

>  Hi All,
> I would like to share with you a letter being circulated by Michele
> Neylon, the wonderful Blacknight registrar (and the only registrar in
> Ireland).  It deals with new gTLDs that are "closed gardens" -- generic
> words that some companies have applied for as new gTLDs and will keep
> "closed" -- not open for general second-level domain name registration.
> These include some applicants for .BLOG and .CLOUD, among many others.
>
> It's a powerful letter with strong free speech/freedom of expression
> arguments. Concerns are shared by registries, registrars and registrants --
> and Michele is looking for Signatories.
>
> Please take a moment to look at the letter, and let Michele know if you
> can sign on (name, organization).  Michele is cc'ed on this email, and can
> be reached at michele at blacknight.ie
>
> -----
> Here's the full version with current signatories :
> https://docs.google.com/document/d/1ZUNlookOWyaSW8lXfi_37zVFsVk9xcxncvmE0uwPEFY/edit
> **Here are two quotes from the
> **
>
>
> Here are two quotes from the letter:
> "Based on our collective industry experience, we are of the opinion that
> the underlying intention of Section 6 was to allow for the operation of
> closed gTLDs only under very defined circumstances.
> Specifically, that closed gTLDs should be reserved for only those strings
> in which the applicant possesses established (i.e., legally recognized)
> intellectual property rights, basically brand names.  We believe that this
> interpretation of Section 6 is inherently logical especially in view of the
> discussions that preceded the opening of gTLDs -- which focused, in very
> large part, on expanding choices and opportunities as well as promoting
> innovation, for Internet consumers worldwide."
>
> "Further,  generic words used in a generic way belong to all people. It is
> inherently in the public interest to allow access to generic new gTLDs to
> the whole of the Internet Community, e.g., .BLOG, .MUSIC, .CLOUD. Allowing
> everyone to register and use second level domain names of these powerful,
> generic TLDs is exactly what we envisioned the New gTLD Program would do.
> In contrast, to allow individual Registry Operators to segregate and
> close-off common words for which they do not possess intellectual property
> rights in effect allows them to circumvent nation-states’ entrenched legal
> processes for obtaining legitimate and recognized trademark protections."
> ----
> Best,
> Kathy
>
> Kathy Kleiman
> Internet Counsel, Fletcher, Heald & Hildreth
> Co-Founder, NCUC
>
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