Closed New gTLDs - "Closed Gardens"

[Edward Morris]

Hello Andreas.

With all due respect  you are wrong in your apparent assertion that domain
names and trademarks are the same thing..

That domain names are not trademarks does not imply that domain names can
not be the same word as trademarks. If we were to take your representation
that domain names are trademarks would you kindly explain to me how the
principles of territoriality and product classification, integral to all
known trademark schemes in the developed world, are applied online? They
are not.

There are domain names that are not trademarks. There are trademarks that
are not domain names. They are not the same thing.

That ICANN was created and developed in a manner that many of us believe
elevates brand owner interests above all others does not change this
essential fact. Some brand owners have come to recognise this in claiming a
'domain name navigation right' relating to domain names. Of course they
continue to claim a trademark based interest in said domain names. They
never seem to be satisfied.

In the context of Michele Neylon's letter it is claimed that ICANN by
granting so called 'closed garden' gTLD's is usurping trademark authority
vested in the nation state. This simply is not true. If one objects to a
domain name, gTLD or otherwise, being granted in contradiction to national
law, trademark or otherwise, one always has recourse to the wonderful court
systems of said nation states. In fact, there are a few of us out there who
would like to return to the 'good old days' of domain names being assigned
on a first come first served basis and thus forcing mark holders to go to
court if they feel their rights have been violated.,,and getting our
beloved California public benefits corporation out of the business of
tangentially determining aspects of international intellectual monopoly
policy.

That ship may have sailed. However the attempt to elevate domain names into
trademarks must be resisted. Domain names are identifiers, no more and no
less, and may be subject to regulation under national trademark laws as are
any other identifier. That intellectual property interests have so
institutionalised themselves into the ICANN process, with little internal
blowback from anyone other than this Constituency, is sad. It does not,
however, change the nature of a domain name, a trademark, intellectual
monopolies, ICANN or the role of the nation state.

Domain names are not trademarks. ICANN is free to determine the policy it
wishes to follow in assigning domain name licenses in any manner it wishes.
There are, of course, practical considerations and the multistakeholder
model itself in play  but those considerations go beyomd the confines of
this discussion.



On Wed, Sep 5, 2012 at 10:03 PM, Andrei Barburas <abarburas at iicd.org> wrote:

> Hello all,
>
> Edward, allow me to contradict you regarding this statement:
>
> "*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 best example I can give, is Amazon.com which is an actual trademark
> (Amazon with and without the dotcom; a list of their trademarks can be
> found here:
> http://www.amazon.com/gp/help/customer/display.html/?nodeId=200738910)
>
> This issue was discussed in one of our previous mailings regarding
> "generic" words, like fruits and everyday items.
>
>
>
> *Andrei Barburas*
>
> Community Relations Services Officer
>
>
>
> International Institute for Communication and Development (IICD)
>
> P.O. Box 11586, 2502 AN The Hague, The Netherlands
>
>
> Mobile: +31 62 928 2879
>
> Phone: +31 70 311 7311
> Fax: +31 70 311 7322
> Website: www.iicd.org
>
>
>
> *People  ** **ICT   Development*
>
>
>
> On Wed, Sep 5, 2012 at 10:19 PM, Edward Morris <
> edward.morris at alumni.usc.edu> wrote:
>
>> 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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