[NCSG-Discuss] Closed Generics are Against the Rules

[William Drake]

Hi

So there's clearly a diversity of views on this issue among reasonable people.  This was also evident at the IGF meeting in Baku, where we spent some time on it in the context of a wider discussion of new gTLDs in the Critical Internet Resources main session (I co-moderatated, Milton spoke to the issue, as did Anriette Esterhuysen from NCUC member APC, the Brazilian ambassador, others... http://webcast.igf2012.com/ondemand/.)  

For this year's IGF in Bali, Alain and I discussed the possibility of proposing a joint NPOC/NCUC Open Forum session, and in addition the two constituencies could each organize their own workshops reflecting their respective priorities and possibilities.  In this context, I'm wondering whether closed generics might not be a good topic for a NCUC workshop.  We could easily get a solid MS panel together with strongly diverse views that would probably be of interest to the sort of broader, non-GNSO-insider audiences IGFs attract. I can already think of a number of developing country government, business, technical and CS folks who'd likely be eager to participate as speakers, and it's a nicely bounded problem set that'd lend itself to focused consideration of commercial and noncommercial arguments etc.

After we get past the WSIS+10 and IGF meetings in Paris I may pitch the Program Team a formal proposal on this.  If anyone would like to conspire, let me know.

Bill

On 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] 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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