ICANN Closed Registries Forum (1)
EDITED HIGHLIGHTS PART 1
More than 260 posts were received from individuals, corporations and organizations to ICANN's comment & objections forum about closed gTLD registries. A selection of edited highlights are presented on six Forum pages here, in no particular order.
NOTE The vast majority of contributions seem to only be from English speaking developed nations - Ed.
Barnes & Noble Warns Closed TLDs Will Stifle Competition
"Amazon, the dominant player in the book industry, should not be allowed to control the Book TLDs, which would enable them to control generic industry terms in a closed fashion with disastrous consequences not only for bookselling but for the American public. If Amazon, which controls approximately 60% of the market for eBooks and 25% of the physical book market (cited), were granted the exclusive use of .book, .read and .author, Amazon would use the control of these TLDs to stifle competition in the bookselling and publishing industries, which are critical to the future of copyrighted expression in the United States.
"Ownership of common industry terms as closed generic TLDs by industry players would be anticompetitive and limit consumer choice across the Internet. This is especially true with regard to Amazon, which has a history of anticompetitive activity.
"Amazon's clear goal is to dominate the bookselling and publishing markets. Their drive to further consolidate these markets will be greatly aided by their control of the .book, .read and .author TLDs. By having Amazon control these TLDs, creativity will be limited and content diversity threatened."
V. DeFelice and Bradley A. Feuer. Barnes & Noble, Inc
Mar 01: Comment for Submission on behalf of Barnes & Noble, Inc
Consumers Want Choice, Not Filtered Information From One Company
We are deeply concerned about the current situation of applications which include closed generic TLDs for important industry terms. According to ICANNs vision, 'one world, one Internet,' we deeply agree and believe the Internet is a place for all human-kind.
1. Could cause an anticompetitive threat
"Defining 'generic terms', in a common manner, indicate the common name of the goods or services. One portion of the new gTLDs applications include generic terms associated with the broad market. These applicants claim to use these generic strings exclusively among their organization. These generic strings if used as gTLDs are common object for all human-kind and should not be the sole object of a private firm.
"Because generic terms are usually used as a kind of mark in the distribution and transaction in the market, everyone needs to use them and they should be open to all people.
"In addition, a domain system provides neither the Trial for invalidation nor Trial for rescision as the clearly fixed procedure, unlike a trademark system.
2. Could cause the invasion in the free and equal Internet industry
"We believe that the development of the Internet can be heavily relied upon, free information sharing within all levels; which has brought healthy competition to birth true innovation. As a result, people and organizations have been empowered and society as a whole has benefitted from the power of the Internet.
"To ensure the healthy development of society and the growth of a fair Internet industry, we believe that a firm privately owning generic strings as domains does not contribute to the development of society and the growth of a healthy industry.
3. Could cause detriment to Internet users' interests
"For end-users, if ICANN allows closed generic TLDs to proceed; the end-users freedom of enjoying benefits from the Internet will also become restricted. Choice is what end-users want, not filtered information from a specific company."
Association of New Economy (JANE).
(JANE consists of 693 companies with end-user reach approx 0.17 billion people - Ed.)
Mar 07: Japan Association of New Economy (JANE) Opposition to closed generic TLDs for important industry terms
Trademark Law States Generic Terms Not Entitled to Exclusive Protection Under Any Circumstances
"ICANN, the public, industry associations and governments should carefully examine the threat to fair competition posed by exclusive ownership of common industry terms by a single member of that industry and consider appropriate action to prevent exclusive private ownership or control of generic industry terms.
"Domain names can function like trademarks as source identifiers. This will be especially so with the launch of numerous new gTLDs. Many domain name owners in fact use their domain names as a trademark. The view that domain names are mere addresses with no source-identifying function is a relic of the exclusive .com era. See, e.g. Image Online Design, Inc. v. ICANN, Case No. CV 12-08968, at 17 (C.D. Cal. 2013) (the USPTO has recognized that as the number of available TLDs is increased by [ICANN], or if the nature of new TLDs changes, the examining attorney must consider any potential source-indicating function of the TLD and introduce evidence as to the significance of the TLD. It asserts that the function of TLDs as generally not being source indicating is a relic of an essentially exclusive .com.). Thus, settled intellectual property law is the appropriate framework for evaluating proposed TLDs.
"...(5) Finally, generic terms are common words or terms, often found in the dictionary, that identify products and services and are not specific to any particular source, such as 'APPLE' used in connection with the fruit or 'SHREDDED WHEAT' for the breakfast cereal, for which no protection or exclusive use is available. Trademark law recognizes that truly generic terms are not entitled to exclusive protection under any circumstances, because doing so will hinder competition.
"...if only one member of an industry could use the online designation matching a generic term, others in that industry are likely to suffer a competitive disadvantage in the online world. Such a result would cause difficulties for competitors as well as hardship for consumers, who might not realize what product the competitors are selling because it does not carry its common name. It would, therefore, be inequitable to grant exclusive use of the .app top level domain name, for example, to a single industry player to the exclusion of all others.
"For these reasons, we share the concerns of others that ICANNs delegation of closed generic TLDs for exclusive ownership and control by a single industry player would be contrary to the existing accepted legal norms for intellectual property rights and may have an anti-competitive effect that is contrary to ICANNs stated goals and policies...
"AIPLA (American Intellectual Property Law Association) recommends that applications for closed generic TLDs should be denied if they involve exclusive ownership, control and use as a closed registry of a generic TLD that matches a generic industry term by a single member of that industry..."
I.D. Lewis. American Intellectual Property Law Association
(AIPLA is a national bar association with approx 15,000 members mostly lawyers in various intellectual property fields - Ed.)
Mar 07: Comments on Closed Generic gTLD Applications
Closed gTLDs Expected To Function Like Deceptive Trademarks
"Like the oceans and outer space, generic word TLDs form part of the global resource to be shared equitable among all of mankind and as such, should not be delegated in a closed fashion to any commercial or non-commercial interest...
"Under international law, commonly held property is termed terra nullius and depends upon the dual assumptions that such zones are free for the use and exploitation of all and that persons should not be deprived of the protection of the law merely because of the absence of a state sovereignty over such zones. Under this analysis, one could make a Limited Public Interest Objection arguing that the existence of international law norms governing the protection and regulation of commonly owned resources preclude the delegation of a generic term TLD to a registry who is not under some reasonable obligation to make the TLD available to all on fair and equitable terms...
"Generic closed gTLDs can be expected to function as would a deceptive trademark, misleading consumers and other members of the Internet public in respect to what the consumer would expect to find when pointing to a domain name ending in that generic term. Proprietary claims to marks that would be expected to deceive or mislead consumers are universally disallowed."
Mar 03: Personal Statement Regarding "Generic Closed" gTLDs:
Amazon May Corner the Entire Music Space with .music, .song & .tunes
"We are troubled by dominant companies with market power, such as Amazon and Google, who have applied for a significant portfolio of 'closed' gTLDs to expand their Internet monopolies and thwart competition.
"For example, Amazon has applied for 3 culturally significant music-themed gTLDs (.MUSIC, .SONG and .TUNES) that affect the entire music sector and are attempting to corner the entire music domain space by closing all 3 music-themed gTLDs for the purpose of advancing only Amazons goals:
"Amazons three music-themed 'closed' applications violate four of ICANN's Core Values (cited) materially harming the music community by discriminating against their active participation in registering and operating a music-themed domain in a competitive, economically and culturally appropriate manner in all three music-themed strings:
"The notion of the second largest digital music retailer controlling and owning every artists name and valuable music-related keyword in the second-level across three not one 'closed' music-themed gTLDs in perpetuity creates material economic and cultural harm to the legitimate interests of the entire music community...
"...We recommend ICANN serve the global public interest and reject those anti-competitive applications that clearly have the intention create detrimental economic and cultural harm to significant portions of the Internet community, such as the clearly delineated music community."
Mar 07: DotMusic (.MUSIC) Public Comments about "Closed" TLD Applications and those relating to Music-Themed Strings
Security Firms Protecting Schools, Homes and Power Plants Face Disadvantage
"AICC (Alarm Industry Communications Committee) and its members do not begrudge Symantec the use of the string '.security', and recognizes Symantec as a reputable company providing valuable software protection services to the public. However, it is respectfully submitted that Symantec should not be granted exclusive use of this string (i.e., closed domain status), since there are thousands of companies large and small that provide security services to the public, and many of these companies have been providing these services for decades longer than Symantec has been in business.
"ESA and CSAA, representing the alarm monitoring and installation industry sector, collectively have 2434 member companies providing alarm service to the public. Together with these trade association members, AICC member companies protect a wide range of sensitive facilities and their occupants from fire, burglaries, sabotage and other emergencies. Protected facilities include government offices, power plants, hospitals, dam and water authorities, pharmaceutical plants, chemical plants, banks, schools and universities. In addition... alarm companies protect a large and ever increasing number of residences and their occupants from fire, intruders, and carbon monoxide poisoning. Alarm companies also provide medical alert services in the event of medical emergencies.
"Establishing .security as a closed gTLD would not be appropriate in light of the broad nature of the term 'security', and the public's perception of this term. While Symantec is involved in one aspect of this industry (software security), a large portion of the public associates 'security' with the services provided by companies such as AICC's members.
"...More and more, security monitoring services involve use of the Internet, especially security services associated with 'smart home' systems. Since domain names serve as 'humanly memorable names for Internet participants', access to the string '[companyname].security' should not be denied... Such denial of access would lead to consumer confusion, and place security companies at a competitive disadvantage in marketing their services on the Internet."
Fiore. Alarm Industry Communications Committee
Mar 05: AICC Comment on Symantec Application for Closed gTLD ".security" ID: 1-1027-69486
Companies Forced to Explain Why They Don't Own the Relevant Domain Extension
"As a lawyer specialising in technology and the cloud sector, I regularly advise cloud service providers and users.
"From my discussions with providers and users alike and in my own view allowing one entity to run a closed a generic TLD such as .CLOUD would create confusion and could distort the market. My cloud provider clients would not be able to register a .CLOUD domain and would have to explain to the market why, as a cloud company, they don't have a .CLOUD domain. My cloud user clients might unfairly prefer a cloud provider simply because it is the owner of a closed .CLOUD domain.
"A scheme which excludes the wider cloud sector in favour of one organisation is unlikely to 'promote competition, consumer trust, and consumer choice' a key tenet of ICANN's Affirmation of Commitments."
DMH Stallard LLP
Mar 06: No to "Closed Generic" gTLD Applications
Go to Forum 2
SuperMonopolies.com A hypothetical analysis of the new top level domain names coming in 2013-14.
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