Closed New gTLDs - "Closed Gardens"

Thu Sep 6 09:36:10 CEST 2012

Hello Edward,

Thank you for the clarification, but I did not mean that domain names and
trademarks are the same thing. What I wanted to say was that a domain name
can be registered as a trademark, like Amazon.com and probably others that
did the same thing.

But while we know that a domain name is not the same thing as a trademark,
in a court of law, depending on the judge's expertise and knowledge, the
two might be considered the same thing; according to me, that is the
biggest concern.

Once again, thank you for the clarification Edward.

Regards,

*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 11:54 PM, Edward Morris <edward.morris at alumni.usc.edu
> wrote:

> 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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