[NCSG-Discuss] Closed Generics are Against the Rules

Sun Feb 10 19:17:29 CET 2013

Hi Edward and All,
I've been meaning to write for some time about Closed Generics. Since 
1996, I've been fighting the abuse of generic words.  The first huge 
domain name dispute battles took place over generic words - that 
trademark owners felt they could use their trademarks (which is, of 
course, a limited right to use a term for a specific category of goods 
and services) to stop ordinary people, organizations and entrepreneurs 
from using ordinary words in ordinary ways. We led a huge fight with 
Network Solutions, and then at the dawn of ICANN, to draft Domain Name 
Dispute Rules that protected generic words used in generic ways as part 
of the public domain -- as belonging to us all!

So when I see so many applicants for "Closed Generic" New gTLDs -- using 
a generic word in a generic way and completely monopolizing it by *not* 
allowing your competitors to use it too, I am shocked: .APP, .BOOK, 
.CLOUD, .DRIVE, .MAP, .MOVIE, .NEWS, .SEARCH, .SHOP. .STORE, .BLOG, 
.ANTIVIRUS, .INSURANCE, .HAIR, .MAKEUP, .BABY -- These are generic words 
being used in generic ways (according to their applications) for the 
sole purpose of monopolizing the common term of an industry or business 
-- and keeping its competitors out.

There is no way that L'Oréal could get trademarks on .SKIN, .SALON, 
.MAKEUP and .HAIR, as these words are part of the public domain name and 
available to All their competitors to use -- their trademarks are on 
MAYBELLINE, REDKIN, L'Oréal, and the share the generics as common 
descriptive terms. So it is against every public interest bone in my 
body to allow generic words used in generic ways to be monopolized by 
only one business or industry player.

But is it against the rules?  I went back to my work as Director of 
Policy for .ORG, as I was with .ORG through the end of the Applicant 
Guidebook work. I served on the Vertical Integration Working Group in a 
very active way, as well as the Registries group that reviewed every 
line of the "Base Registry Agreement" (the model contract for all new 
gTLDs).  We had agreed that, in general, the base model of a Registry is 
"open" -- that Registries must work with ICANN-Accredited Registrars 
worldwide. Why?  To reach Registrants worldwide -- to offer them domain 
names in their own languages, currencies and customs. /(For example, NII 
Quaynor, a founder of NCUC and early Board member, is now one of the few 
Registrars in Africa, and equal access of his Registrants to domain 
names, on a nondiscriminatory basis, has always been important to our 
system). ///

So no, I found that we had NOT agreed to Closed Generics. In fact, the 
base model of the New gTLD Registries was meant to be "open" -- and 
ICANN incorporated this "Open gTLD" model into its Base Registry 
Agreement (in the Applicant Guidebook).  Section 2.9a and the Registry 
Code of Conduct. No Registry may favor a particular Registrar -- but 
provide Equal Access to its Registry Services and Data.  Why?  To be 
fair to Registrants!  It's nowhere written that Verisign can't limit 
.COM domain names only to the NY Stock Exchange companies, or that .ORG 
can't limit .ORG registrations to only US organizations, but everyone 
knows if they did that, they would lose their accreditation with ICANN. 
/Non-discrimination and Equal Access are part of our domain name DNA. 
/(See "Base Agreement & Specifications", Specification 9, 
http://newgtlds.icann.org/en/applicants/agb).

The initial Registry Code of Conduct had _no_ exceptions. Then the 
Commercial Guys got upset-- why should a Dot-Brand TLD, e.g. .IBM, have 
to go through registrars to register domain names, and why should they 
have to register names to the public anyway? (Arguments also made in the 
Vertical Integration WG.)  Special privileges for very limited use New 
TLDs - let IBM keep its domain names for its employees, franchisees, 
etc.  And frankly, most of us agreed.  So the next version of the 
Registry Code of Conduct came out with a narrow exception:

     ==> "6. Registry Operator may request an exemption to this Code of 
Conduct, and such exemption may be             granted by ICANN in 
ICANN’s reasonable discretion, if Registry Operator demonstrates to 
ICANN’s reasonable satisfaction that (i) all domain name registrations 
in the TLD are registered to, and maintained by, Registry Operator for 
its own exclusive use, (ii) Registry Operator does not sell, distribute 
or transfer control or use of any registrations in the TLD to any third 
party that is not an Affiliate of Registry Operator, and (iii) 
application of this Code of Conduct to the TLD is not necessary to 
protect the public interest."

It had a comment that made its intent very clear:
     ===> [*Note: This draft Section 6 of the Registry Operator Code of 
Conduct has been added in response to comments received that suggested 
that the Code was not necessary for registries in which a single 
registrant uses the TLD solely for its own operations and does not sell 
registrations to third parties (e.g. a dot-BRAND)] 
(http://archive.icann.org/en/topics/new-gtlds/draft-agreement-specs-redline-15apr11-en.pdf)

And that's where we left it. Of course, some people in the Vertical 
Integration WG wanted much more, and some of them are on this list. And 
some wanted much less- that all gTLDs be open. The compromise was to 
allow dot-BRANDs to be closed, but certainly not any string any 
applicant wanted for any reasons. Generic words used in generic ways 
belong to everyone in the industry or business :-).

I look forward to our discussion, and happy to provide links letters and 
public comment forums.

All the best,
Kathy
p.s. Quick additional note on "restricted TLDs."  In case anyone is 
wondering, "restricted TLDs" are generally OK among those deeply 
concerned about Closed Generics because restricting .BANK to real banks 
or .LAWYER to lawyers with actual credentials seems consistent with 
non-discrimination and equal access provisions -- provided the criteria 
and fairly and globally applied...

Edward Morris wrote:

:
> Kathy,
>
> I am sympathetic to your position. My concern is that any change now 
> to the program will embroil ICANN in mass litigation that will 
> paralyze the organization for a considerable period going forward. We 
> briefly spoke in Los Angeles about some recent legal hires by Amazon: 
> some pretty impressive hires. Can you convince me that my concerns are 
> invalid? Might not a better approach at this point be to pressure the 
> applicants themselves to open up the generic domains,  to make it 
> socially unacceptable for large companies to operate closed Tlds?
>
> Ed
>
>
>
> On Wed, Feb 6, 2013 at 8:26 PM, Kathy Kleiman <kathy at kathykleiman.com 
> <mailto:kathy at kathykleiman.com>> wrote:
>
>     Quote from Jeff Neuman (VP Neustar) in Amsterdam last week:
>     /*Nearly all of those applying for Closed gTLDs would fail to
>     qualify based on his reading of the Code of Conduct. *//*
>     */
>     Article show concern around the world for TLDs which are generic
>     strings/words of an entire industry or business (DOCS, BOOK,
>     SEARCH, ANTIVIRUS, WATCHES) being dominated and controlled by a
>     single industry/business (and only one of many competitors). 
>     that's being a registry to monoplize a word, not to offer registry
>     services.
>
>     -    The Hindu:  Beauty lies in the ‘domain’ of the highest bidder
>     (Op-ed piece by Parminder Jeet Singh, Executive Director, IT for
>     Change, in special consultative status with the United Nations
>     Economic and Social Council (IGF attendee)), 12/24/2012,
>     http://www.thehindu.com/opinion/op-ed/beauty-lies-in-the-domain-of-the-highest-bidder/article3929612.ece
>
>
>     -    Forbes: The Battle For The Cloud: Amazon Proposes 'Closed'
>     Top-Level .CLOUD Domain, 11/6/2012,
>     http://www.forbes.com/sites/reuvencohen/2012/11/06/the-battle-for-the-cloud-amazon-proposes-closed-top-level-cloud-domain/?partner=yahootix
>
>
>     -    Techworld: Problems arise where one entity is seeking
>     exclusive use of strings with broad applicability, 11/21/2012,
>     http://news.techworld.com/networking/3412616/icann-issues-early-warnings-over-controversial-top-level-domains/
>
>     I am deeply, deeply concerned!
>     Best,
>     Kathy
>
>
>>     A quote from Karen Lentz (ICANN legal staff): "Under the current rules, there's nothing that would prevent the use of closed generics, which is focused on the issue of who can register a name."
>>
>>>     -----Original Message-----
>>>     From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On Behalf
>>>     Of William Drake
>>>     Sent: Tuesday, February 05, 2013 1:18 PM
>>>     To:NCSG-DISCUSS at LISTSERV.SYR.EDU  <mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU>
>>>     Subject: [NCSG-Discuss] new-gtld-committee-not-sure-how-to-handle-
>>>     closed-generic-applications
>>>
>>>     surprise!
>>>
>>>     http://www.thedomains.com/2013/02/05/icann-new-gtld-committee-not-
>>>     sure-how-to-handle-closed-generic-applications/
>
>

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