ICANN Closed Registries Forum (2)

EDITED HIGHLIGHTS PART 2

FORUM LINK:

http://forum.icann.org/lists/comments-closed-generic-05feb13/

NOTE — ICANN changed the comment links in March. They're fixed now, but if you find an incorrect link, go to the forum link above and search by the date & title following each one.

ICANN's Approach is Undemocratic And Anticompetitive

"Preventing others from registering under descriptive gTLDs means restriction of competition to the detriment of consumers. The current proposal is contrary to ICANN's intention with the launch of new gTLDs, namely to broaden the domain name space and to spur competition for the benefit of all.

"...ICANN's approach of allowing the highest bidder to ring fence a desirable descriptive term is undemocratic and anticompetitive. In effect, ICANN's approach is analagous to a government body building a new highway to enable efficient transport and then granting one company a monopoly to use that highway.

"The impact of ICANN's policy on consumers is likely to be detrimental. Consumers do not typically associate a descriptive term with a particular brand. Users visiting a web site at a gTLD consisting of a descriptive term would typically expect to be presented with products or services from a number of different brands. However, if the current proposal goes forward, the consumer will be presented with a single brand offering and is accordingly more likely to purchase goods or services emanating from the holder of the descriptive gTLD."

Martin Broden. Inter IKEA Systems B.V.
LINK

Mar 04: Inter IKEA Systems B.V. comment to closed generic gTLDs

Closed TLDs Would Gain "Exclusive Recognition" — A Principle Prohibited By Trademark Law

"Trademark law in every country in the world forbids individuals to gain exclusive property rights in generic names of products. One of the primary rationales for this rule is to prevent a single person or company from gaining an unfair competitive advantage in the marketplace. Private ownership of generic language is not consistent with free enterprise and fair competition in an open economy. If ICANN were to approve closed, generic gTLDs, these important goals would be undermined...

"Transparency and consumer choice are goals of the trademark system of every country in the world. In our view, these values are threatened by closed, generic gTLDs. Indeed, should these types of new gTLDs be approved, consumers may mistakenly believe they are using a gTLD that allows for competition, when in reality the gTLD is closed and the apparently competitive products are being offered by a single entity. This would allow the owner of the generic gTLD to gain exclusive recognition as the provider of a generic service, something that is prohibited by Trademark law."

David J Franklyn and J Thomas McCarthy. McCarthy Institute for Intellectual Property and Technology Law
LINK

(J. Thomas McCarthy is a senior professor at the University of San Francisco School of Law. Among other accomplishments, Professor McCarthy was a member of the American Law Institute Advisory Committee involved in drafting the 1995 Restatement of the Law of Unfair Competition and was a member of the Trademark Review Commission. He is also the author of the seven volume treatise McCarthy on Trademarks and Unfair Competition which has been referenced as an authority in more than 3000 judicial opinions. Source: Wikipedia - Ed.)

Mar 01: Comment for Submission on behalf of McCarthy Institute

Extremely Detrimental to the Book Industry

"Granting monopoly control of a TLD to a single industry member can create an unfair competitive advantage. Such an arrangement would work against both consumers and the industry associated with the generic term.

"EIBF is of the strong opinion that indeed closed generic gTLD applications have to be invalidated when submitted by commercial entities operating in a sector of activity related to the closed generic gTLD.

"In the case of a closed generic TLD like .books, the exclusivity granted to the winning applicant would de facto strengthen the position of the biggest bidder to have sole use of the gTLD in the book industry, would be anti-competitive and extremely detrimental to the book industry as a whole."

Françoise Dubruille. European and International Booksellers Federation
(The EIBF represents 25,000 booksellers - Ed.)
LINK

Mar 01: The European & International Booksellers Federation is against the use of closed generic TLD by commercial entities

Closed Generic TLDs Would Serve Protectionist Cartels Without Obvious Benefit

"Let us work through an example. Suppose '.insurance' was registered by one cartel or company as a 'closed generic' TLD. Not only would this (be) grossly unfair to competitors within the insurance field, but consider that the insurance industry is a matter of great public interest in itself. In this case, since taking out insurance is often a legal requirement for many public activities, consumers deserve impartial and independent data and advice, and the ability to network on a 'peer to peer' basis, around the generic issue 'insurance'.

"Suppose if, as a public service, I wished to create a site... to enable members of the public to share advice on getting the best out of the insurance industry as a whole. If there were a TLD '.insurance' I would consider it natural and normal to want to register my sites' domain under that TLD — impossible if it was closed.

"To take another example from MicroSoft's submission to you, the pursued closed generic TLD '. book' — is it really necessary to have a consultation to find out why this is such a bad idea? To exclusively own such a TLD would surely be tantamount to controlling a large element of the public and private perception of what a book is and what the word means. And of course the same applies to any generic term. A kind of privatised censorship.

"I fail to understand why this would be necessary. It does seem rather obvious that the concept of closed generic TLDs would only serve protectionist industrial cartels, without any obvious side benefit for the general marketplace of ideas, the market of goods and services, or to the world in general.

"To be honest I think the problem you've got is that 'generic closed' is of course a total contradiction in terms. I cannot see any circumstances in which it would improve the network we have. It seems to me the introduction of this concept would only add to the current, creeping sense of doom associated with the enclosure of the commons, the increasing sense that the Internet as we have known it is in grave danger...

"My feeling is that this proposal will only cause resentment amongst developers and users, and be a significant step towards a 'closed' internet, a two-tier internet in which any sense of a level playing field has been eradicated."

KJ Mobberley
LINK

Mar 07: consultation response

USTelecom Warns of Incentive to Deny Domain Names to Competitors

"Certain of the closed gTLDs should be denied due to inherent conflicts of interest that create both the incentive and ability for the Applicants to operate them in a manner that forecloses registration opportunities to their competitors in the same space. These gTLD applications were submitted by Applicants who compete alongside USTelecom’s members in the telecommunications and information services marketplace. Each of the applied-for gTLDs are generic terms that describe products and/or services in competitive markets identical to those offered by USTelecom members.

"...The gTLD applications are being proposed as 'closed' registries, meaning that the Applicant has direct control over each registrant and how each second-level domain name may be registered and used. Moreover, Applicants will be in a position to deny second-level domain name registrations to competitors within the same marketplace.

"...For example, cloud computing is emerging as one of the most vibrant competitive industries in today’s marketplace. Analysts expect that spending on public cloud services will increase 20 percent in 2012, to $109 billion from $91 billion in 2011. By 2016, such expenditures could nearly double, to $207 billion. (cited) Of the two applications submitted as closed registries for the .cloud gTLD, one was submitted by an affiliate of Amazon.com, Inc. (Amazon), and another was submitted by Charleston Road Registry, Inc. (Google). (cited) The exclusive control of the .cloud gTLD by either of two of the largest companies in the cloud computing area would enable them to feasibly foreclose entry into the gTLD space by either emerging or existing competitors.

"Approval and delegation by ICANN of such closed registries would result in a lessening of consumer choice on the Internet. Rather than fostering competition in discrete areas, the use of closed models by Applicants for certain gTLDs will instead limit competition."

Kevin G. Rupy. United States Telecom Association
LINK

(Besides the .CLOUD registry mentioned in this extract, USTelecom objects to other closed domain string applications such as .PHONE, .CALL, .TALK, and .MOBILE - Ed.)

Mar 07: USTelecom Closed gTLD Proceeding Comments

Lack of Awareness of the Process Precludes Stark Objections

"The Asia Cloud Computing Association... would like to register concerns with the process now under way enabling companies to acquire, own and control generic top level domains (gTLDs) for the purposes of exclusive use and competitive advantage.

"...We are deeply concerned that certain companies are seeking the right to own the gTLD '.cloud' in particular, and would then be able to decide and restrict who was able to use the domain and therefore who was able to access it.

"We note that ICANN is similarly considering a host of applications for generic terms such as .book, .movie, .search, .insurance, .app, which could have similar deleterious impact across a host of sectors and businesses and strongly urge for three steps to be taken:

1. For ICANN to reconsider the process currently underway which would allow exclusive and uncompetitive ownership of gTLDs;

2. For ICANN to introduce and include a review process that only approves new gTLDs on the basis that they are to be open to any company that seeks to register therein OR that special cases need to be made for restriction...;

3. That a broader and more extensive information and education campaign is conducted prior to any gTLDs being awarded under the current process.

"...We are concerned also that there is a general lack of awareness of the current process, and that business, organizations and governments across the region would all have stark objections if they understood the process now under way and the potential economic and developmental impacts.

"...Any number of companies, some that do not yet exist, face the prospect of emerging only to find that their general sector is 'owned' by a single company able to dictate particular online access. And in a world where the Internet stands as a platform for democratic global reach, that development would immediately serve to balkanize the Net into specific fiefdoms."

Bernie Trudel. Asia Cloud Computing Association
LINK

Mar 07: Asia Cloud Computing Association opposes assigning of Closed Generic Top Level Domains

ICANN's Duty to Protect the Public Interest

"...I believe that enabling exclusive, permanent ownership and control of large chunks of *generic* Internet space for private use would be a mistake.

"It is obvious that closed generic TLD applicants intend to circumvent ICANN’s Code of Conduct and New Registry Agreement by attempting to use exceptions that were never intended for this purpose. Furthermore, if these applicants are successful, the ensuing situation would be one that would threaten the openness and freedom of the internet as we know it today, and have damaging repercussions for internet users globally. Last but not the least; these closed generic TLDs would certainly serve to thwart the very competition that ICANN seeks to promote.

"Applicants are expected to comply with ICANN’s Code of Conduct. More specifically, Section 1... stipulates that Registries must not register domain names in their own right... Given that applicants for closed generic TLDs do not intend to comply with the above, they require an exemption...

"To begin with, ICANN must use its reasonable discretion to assess whether the application of this Code of Conduct is necessary to protect public interest. That being said, I believe this is the exact situation which requires the application of the Code of Conduct to protect public interest.

"If generic strings such as .blog, .cloud, .music, .movie, etc. are delegated to be used as closed gTLDs, it will cause the Internet to become a 'Restricted Area' where users would have no option but to access information about one single brand / product / service while they search for more choice. Evidently this does not benefit users of the internet; instead it is harmful to them.

"Any organization that has the authority to control and use an entire gTLD (specifically related to the industry it belongs to), is at an obvious unfair advantage. It limits the ability of any other competitor organizations to acquire domain names in the namespace, while simultaneously restricting users from accessing the information they seek. It deprives competing organization off the opportunity to connect with potential customers, thereby causing commercial damage.

"It is ICANN’s duty to act responsibly and in accordance with its own core values. Based on the above comment, ICANN must NOT approve closed generic TLDs as they are."

Varun Asher
LINK

Mar 07: Closed generic TLDs should not be approved

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