[NCSG-Discuss] Closed Generics are Against the Rules

Mon Feb 11 13:51:02 CET 2013

Hi Kathy,

Many thanks for this info. I'm not a fan of closed generics either, and had
wondered how they came about.

Maria

On 11 February 2013 07:59, Andrei Barburas <abarburas at iicd.org> wrote:

> 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/
>>>
>>>
>>>
>>
>>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ncuc.org/pipermail/ncuc-discuss/attachments/20130211/c976d67f/attachment-0001.html>