[NCSG-Discuss] Closed Generics - a letter together

[Nicolas Adam]

[What follows and everything before and thereafter on this subject is my 
own opinion, representing only me, and it is free from conflict of 
interests.]

It is appropriate to refer to the *root* (so all yet-to-be -un TLDs) as 
a public asset , IMO.

But it is appropriate (read *the* most appropriate way) to manage 
extensions of that asset by allowing parties to let them bloom.

Sure, we collectively may watch the soil and the amount of light 
(trademark, etc) that serve as a blooming ground, and thus it is 
appropriate to cast a regulative eye  on registries and TLDs to insure 
many things that we would prefer as a function of the likelihood to 
achieve x [global public] good.

Nicolas

On 26/02/2013 1:31 AM, David Cake wrote:
> This is, of course, a sleight of hand, as Milton should well know.
> The case that being a registrant of a second or third level domain is 
> effectively ownership (apart from a number of specific legal ways in 
> which it may not be) has been established, but the question of whether 
> being a registry for a top level domain is thus the same as ownership, 
> or should be considered as administration of a public asset, is not 
> settled and is *precisely* what is under discussion.
> And the analogy that the same rules that apply at lower levels is a 
> slick, easy, line of generic reasoning that is easily shown to false 
> in operation.
>
> There is a precise analogy with trademark law here. We allow 
> registration of a combination of generic words as a trademark, but 
> generally not a generic word alone, certainly not for all classes.
>
> Kathys example, that we don't simply allow TLD owners to just chuck up 
> a copy of BIND on some cheap commercial hosting, even if it is a 
> closed domain likely to only have a few dozen registrants within it, 
> applies too. To treat TLDs as a very special important case of holding 
> something in public trust, that you can't simply throw out when you 
> are done with it, applies to TLDs in many many ways. Why should we 
> suddenly assume that this special treatment of TLDs is irrelevant to 
> ownership and registration?
>
> Not that I think this is an argument against closed generics - but I 
> do think this particular argument FOR closed generics TLDs immediately 
> following from closed 2LDs, 3LDs, is very weak indeed.
> Cheers
> David
>
> On 26/02/2013, at 3:49 AM, Milton L Mueller <mueller at SYR.EDU 
> <mailto:mueller at SYR.EDU>> wrote:
>
>> Here is a simple way for undecided people to make up their mind on 
>> this issue in a reasonable way:
>> We own a generic second-level domain:
>> *internetgovernance.org <http://internetgovernance.org>***
>> Internet governance is a generic term.
>> Here is a direct challenge to Kathy, Alain, Norbert and Kristina: 
>> Please tell me why you have a right to register a third-level domain 
>> underinternetgovernance.org <http://internetgovernance.org>. Explain 
>> to me why OUR domain should be forced to resolve YOUR registrations, 
>> which may contain positions we don't agree with, which are irrelevant 
>> to the purpose of our site, or maybe even destructive of it.
>> If you can't answer that question for my SLD, you can't make the same 
>> case for a TLD. There is no difference.
>> I am really looking forward to the kind of explanations I will get. I 
>> suspect I will get silence, or some rather lame excuses.
>> *From:*NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU 
>> <mailto:DISCUSS at LISTSERV.SYR.EDU>]*On Behalf Of*Kristina Macaulay
>> *Sent:*Sunday, February 24, 2013 3:16 PM
>> *To:*NCSG-DISCUSS at LISTSERV.SYR.EDU <mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU>
>> *Subject:*Re: [NCSG-Discuss] Closed Generics - a letter together
>> I'd be happy to contribute or review any statements regarding this 
>> issue, as I too feel strongly that Closed Generic words must not 
>> become exclusive or restricted as proposed.
>> This is a non-commercial issue.
>> I know it's not related to censorship or copyright, but it has a 
>> similar notion of precedence of*_exclusive perpetuity_*right over 
>> something…on this occasion it will be a generic term.
>> *This MUST never happen!!!!*
>> Warmly,
>> Kristina
>>
>> On 24 Feb 2013, at 16:40, Avri Doria <avri at ACM.ORG 
>> <mailto:avri at ACM.ORG>> wrote:
>>
>>
>> Hi,
>>
>> Obviously I am not volunteering for this, but
>>
>> I think it is a good idea.  I think at this point one of the best 
>> things we can all collectively offer are strong statements from our 
>> various perspectives on this.
>>
>> I was planing to work on my own personal statement on why this is not 
>> a problem and something that was expected, but would gladly work with 
>> others to produce a common statement several of us could sign on to.
>>
>> avri
>>
>> On 24 Feb 2013, at 16:44, Kathy Kleiman wrote:
>>
>>
>> Dear Alain and All,
>> I have a question. Who would like to work with me on a statement of 
>> individuals and organizations within the NCSG? Obviously, we don't 
>> have consensus and this will not be a Stakeholder Group statement, 
>> but there seem to be a lot of us with similar concerns - across NPOC 
>> and NCUC. And further, the issue of generic words used in generic 
>> ways is a classic noncommercial issue. It's the balance to trademark 
>> law...
>>
>> If you are interested in reviewing a statement or letter, please let 
>> me know, and we'll create a subgroup.
>> If anyone would like to work with me on crafting  a statement or 
>> letter, welcome!
>>
>> 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
>> 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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