[NCSG-Discuss] Closed Generics are Against the Rules

[David Cake]

On 26/02/2013, at 3:37 AM, Milton L Mueller <mueller at syr.edu> wrote:

>  
>  
> Alain said
> :
> but pure generic words belong to everybody, period.
>  
> This is the equivocation that everyone makes, but it's just a conceptual error, pure and simple. Registering a domain that corresponds to a word does not mean ownership of a word.

	Of course it doesn't - but it does mean control over a generic word within a general area of commerce, which is traditionally around the point at which we stop thinking 'this is just part of the good old market free for all' and start thinking 'maybe we ought to have some sort of policy process here'. 

> If you register <genericword> .com, you don't "own" <genericword>, you own a unique registration in the domain name system, that's all. The same goes for the TLD level. The DNS is recursive, is recursive, is recursive, so there is NO DIFFERENCE between registering generics at the second level, top level, third level.

	Except there is because the smaller space is more valuable, because first level words have a more direct association than second level, and so one. You are right that this is not a clear cut, entirely different category of name that therefore must be regulated entirely differently - but that doesn't mean that is isn't a space that deserves to be closer regulated. 
	Of course, the entire, multi-year, new gTLD process came about largely because ICANN, as a whole, does feel that a TLD is a different kind of thing to lower levels, that deserves a lot more policy process. We have this expanded policy process for creation, for delegation, for compliance, for contracts, for string similarity, etc. But we are supposed to suddenly, now, on the issue of who gets to register a name, just suddenly assume that the TLD case should be just the same as any old 3LD?

>  
> So, if I get dot BOOK, I don't own the word "book," i.e., I cannot stop anyone from uttering, printing, writing or otherwise making use of the word "book," nor do I have any inherent power over where you can buy, sell or read books. I simply am the exclusive holder of a TLD string formed by typing these four letters: b, o, o, k. I can, therefore, control who registers DNS labels under .BOOK, (or under .BOOK.COM, or under BOOK.FOO.COM) etc., etc.


	But the argument that ignores the fact the letters b,o,o,k form a common English word with strong association with a common class of objects/products, and insists that there should be absolutely no policy difference at all between a common word and four random letters,  is nearly equally ridiculous (and appears to be the basis for all your arguments in favour of closed generics).  
	Put it this way. Would we allow someone to trademark the term 'book', as a generic trademark applying to both all books and all other uses of the term book? Of course not. What about a trademark on all uses of the term book as a suffix? Again, of course not. Why then should we assume that granting someone the same special rights within the domain name system could not possibly ever have any policy implications, and should never even be cursorily examined for public interest?

> Hope that is cleared up now.
>  
> Keep in mind that whether .BOOK is "open" for first come, first-served registration, or restricted by policy to approved registrants, or completely closed to all but a single registrant, the TLD registry ALWAYS has exclusive ownership of the string. No other registry will be able to use that string for anything else.

	Ownership and control are not the same thing, and registries don't really have ownership, just a right to run a particular form of business. Other registrys are prevented from running a particular form of business, but if the open registries 'owned' their tlds, you'd think that would give them basic controls such as the right to control who got to add things to their registry at whim (which ICANN registries of open tlds explicitly do not). 
	Cheers
		David

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