[NCSG-Discuss] Closed Generics are Against the Rules

Mon Feb 11 15:15:43 CET 2013

Thank you Kathy,

I'm with you.

Lou

On 2/10/2013 1:17 PM, Kathy Kleiman 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 
>> <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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