Closed New gTLDs - "Closed Gardens"

[Nicolas Adam]

I disagree about the superiority of .book over .book*s* (and the many 
other close modification such as .bookish, .oldbook, .newbook, 
.goodbook, .readbooks, .buybooks, [brand]books, etc., etc.) .libram, ., 
.tales, .grimoire, .etc .

"Google" became a household name, after all. I don't even think that the 
one that has .book has an advantage over the one that has 
.thatthingywithpagesnotsomuchfromthepast.

In fact, i'd take my chance marketing the latter.

Nicolas

On 06/09/2012 1:17 PM, David Cake wrote:
> 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 <http://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 
>> <http://books.com>,cloud.com <http://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 <mailto: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 atmichele at blacknight.ie 
>> <mailto: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
>>
>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ncuc.org/pipermail/ncuc-discuss/attachments/20120906/bfc2b473/attachment-0001.html>