Closed New gTLDs - "Closed Gardens"

[David Cake]

I don't think it is a trademark issue purely, nor do I think it is purely a free expression issue. 
But from a public interest point of view, there are some strings that we should consider carefully. 

Amazon don't have a trademark on book - and we would never let them have one. So why should we grant them any exclusive rights on .book, to be used only for their own branded product? And I disagree with Milton on this - the space is vast, yes, but not all strings are equal, and there are no synonyms for book of equal quality. 
Yes, it isn't a monopoly, but it is a significant competitive advantage that I don't think we should be selling exclusive rights to.

Restricted registration (not the same as closed) may well be in the public interest in some cases. I think the case for restricting .bank to banks is reasonable, even if we use the word bank for some other purposes (food bank, seed bank, etc). And restricting .ngo to NGOs etc. 

I'm OK with .brands having closed registration - the logic is essentially the original, public interest, case for trademarks, that it protects consumer interests to prevent attempts to claim false association. 

Sure, there are business agendas at play here. And much as I also am a member of the Michele Neylon fan club, I acknowledge that he (as a registrar) has an interest in keeping as many of them as open as possible. But I also think there are some cases where I'd much rather see a registrant that intends open registration succeed, and those where a closed use would imply trying to 'capture' a generic, not trademarkable, term are particularly problematic (ie .book, .app, .music, etc). Most of which are contested, with at least some major bidders planning on open (or restricted but not closed) registration. 

Cheers

David


On 07/09/2012, at 12:40 AM, Milton L Mueller wrote:

> Kathy
> I don't agree with Michele's letter and don't see that there are actually free expression issues here. Although it is good that you circulated this letter, to keep us informed, we have already started a dialogue about this issue in connection with the NCUC statement regarding human rights issues in new gTLDs.
>  
> As we all know, DNS strings must be exclusively registered to someone. Whoever that person/organization is should be able to determine the level of "closedness" or "openness" of the registrations under it. This is true at the top level, second level, third level, whatever. Just as free expression does not mean that the IGP website (internetgovernance.org) has to allow anyone and everyone to publish their opinion, or register a domain at the third level under it, so ownership of a TLD does not obligate anyone to open its registrations. If they want to, fine. If they don't, it's their right.
>  
> The DNS space is vast. For any given string, there are always more or less good substitutes. Giving someone .cloud does not give anyone a monopoly over cloud services, clouds in the air, use of the word cloud in other contexts, cloud-like brands, cloud images, or…cloudy thinking. The idea that these closed business models create a monopoly on anything is just wrong. The idea that any generic term must be "open" means something very inimical to free expression: it means that ICANN would have to dictate the business models and procedures of whoever registered a given string. It would also mean that ICANN would have to dictate what was a generic word and what was not, because it is not always obvious.
>  
> Valuable domains will be created not by the word or string itself, but by the investment and value that go into its operation.
>  
> I don’t see how we can say that end users - and noncommercial users specifically - are inherently better off if the entity that wins .MUSIC allows open registration or creates a controlled name space in which the second-level is specific artists, or restricts it to internal users, or some other business model. Either way might please users, either way might not work out.   Take any word in any language of your choice: let's say, CHOICE as an example. Can you really contend that free expression is better served if .CHOICE _must_ allow anyone and everyone to register under it? What if it is acquired by Planned Parenthood and they want to use it to promote their own views, and thus limit how the name space is used?
>  
> You know as well as I do, Kathy, that generic terms have been and will continue to be registered at the second level (books.com, cloud.com etc.) In a world where .com constituted over half of the domain name space, those generic terms were "closed" and probably more economically significant than registering a new TLD in a world of 1000 new TLDs will be.
>  
> What is really going on here? I believe that these so-called open v closed and "free expression" concerns are just a cloak for certain business interests to try to gain a leg up on the competition for valuable names. Applicants with business  models oriented around large numbers of individual registrations (e.g., registrars such as Mr. Neylon) are trying to use the regulatory process ex post - re-write the rules in mid-stream - to gain an advantage over applicants with business models that involve more controlled name spaces. I refuse to play along.
>  
> --MM
>  
>  
> From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of Kathy Kleiman
> Sent: Wednesday, September 05, 2012 3:18 PM
> To: NCSG-DISCUSS at LISTSERV.SYR.EDU
> Subject: [NCSG-Discuss] Closed New gTLDs - "Closed Gardens"
>  
> 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/editHere 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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