[NCSG-Discuss] Closed Generics are Against the Rules
Kathy Kleiman
kathy at KATHYKLEIMAN.COM
Sun Feb 24 16:40:12 CET 2013
Tx so much Alain, for your response, and your examples. It all seems to
make sense when we see the examples...
To those who asked about changing the rules, for many of us, barring
Closed Generics *is not changing the rules,* but enforcing them.
I do too much work in the regulatory field to believe in regulation by
surprise. when I first saw the dozens and dozens of Closed Generics
(it's really appalling), I went back to the words of the Applicant
Guidebook, which includes the model Registry Agreement (the agreement
all new gTLD registries will be asked to sign, and with limited
exceptions, expected to sign).
The words clearly, clearly say that a Registry cannot own all of its
domain names -- basically, a registry must operate as a traditional
registry -- unless it asks for an exception. That's embedded in 2.9 of
the Registry Agreement, and its Registry Code of Conduct (called
Specification (or exhibit) 9).
Best,
Kathy
:
> Hi,
>
> I personnally lean heavily in favor of Kathy's position. It seems
> quite reasonable to me for IBM, Accenture, Suzuki or Aga Khan
> Foundation (AKDN for AK Development Network) and many others to use
> their closed gTLD for internal purposes but pure generic words belong
> to everybody, period. So even AFAMILYCOMPANY applied for by Johnson
> Shareholdings Inc would affect not only the use of "family" by all but
> also discriminate against many others such as perhaps the millions of
> family-owned companies!
>
> Bill, I think the "Closed Generics" theme is big enough that it
> warrants an NCSG-wide approach in Bali with distinctive NCUC and NPOC
> events or sessions on different themes our respective Program Teams
> are probably working on right now.
>
> Alain
>
>
>
> On Mon, Feb 11, 2013 at 9:10 AM, William Drake <william.drake at uzh.ch
> <mailto:william.drake at uzh.ch>> wrote:
>
> 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
> <mailto: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 <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/
>>>
>>>
>>
>
>
>
>
> --
> Alain Berranger, B.Eng, MBA
> Member, Board of Directors, CECI, http://www.ceci.ca
> <http://www.ceci.ca/en/about-ceci/team/board-of-directors/>
> Executive-in-residence, Schulich School of Business,
> www.schulich.yorku.ca <http://www.schulich.yorku.ca>
> Treasurer, Global Knowledge Partnership Foundation,
> www.gkpfoundation.org <http://www.gkpfoundation.org>
> NA representative, Chasquinet Foundation, www.chasquinet.org
> <http://www.chasquinet.org>
> Chair, NPOC, NCSG, ICANN, http://npoc.org/
> O:+1 514 484 7824; M:+1 514 704 7824
> Skype: alain.berranger
>
>
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