[NCSG-Discuss] Closed Generics are Against the Rules

Mon Feb 11 08:59:10 CET 2013

Hello Kathy,

I completely support and agree your point of view.

One question though; considering that we are quite far in the process right
now, what would be a logical solution to this problem? In one of my
previous emails, I was wondering why ICANN did not allow second level
registrations for those new generic TLDs, pretty much like .com/.net/.org
and so on...

Besides the money factor that has already been paid by these applicants,
Edward already mentioned the legal factor.

As we speak, I am getting more and more curious about the outcome of this
situation.

Until then, I wish all of you an excellent week ahead.

*Andrei Barburas*

Community Relations Services Officer

International Institute for Communication and Development (IICD)

P.O. Box 11586, 2502 AN The Hague, The Netherlands

NPOC, ICANN member

Mobile: +31 62 928 2879

Phone: +31 70 311 7311
Fax: +31 70 311 7322
Website: www.iicd.org

*People  ** **ICT   Development*

On Sun, Feb 10, 2013 at 7:17 PM, Kathy Kleiman <kathy at kathykleiman.com>wrote:

>  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>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 <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
>> 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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