ICANN Closed Registries Forum (3)

EDITED HIGHLIGHTS PART 3

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.

Michelin Warns of Anticompetitive Consequences and Limited Consumer Choice

"The Internet is with no doubt one of the major channels of sales, from information to the selection of a tire dealer, and this although the sale of tires requires mounting in a garage. According to the website Modern Tire Dealer, online retail sales in the US would reach $200 billion in 2012 and $279 billion in 2015... Running attractive and efficient websites built on easy to remember domain names are a key to access a good SEO ranking on search engines.

1. These generic terms refer to a business category
"Some of these generic terms are necessary for the exercise of an activity and should not be reserved for, or monopolized by a single stakeholder in a business category...

"The delegation of a generic term matching an economic sector to one single player could lead to establishing a monopoly by excluding the direct and indirect competitors.

2. The Applicants are looking for a monopoly
"Some of the applicants for these generic terms have chosen to reserve the name spaces for themselves rather than offering registrations to everyone. These applicants seek to operate them in a completely closed manner and to capture the exclusive use of these generic terms for their own business... and prevent others from registering domain names within such string.

3. A similar application in the brick and mortar world would be denied
"Trademark regulations including the Lanham Trademark Act or the EU Directive 2008/95/EC forbid the registration of trademarks which consist exclusively of signs or indications which have become customary in the current language or in the bona fide and established practices of the trade. If the Applicants were to file a TIRES trademark registration, it would be refused for lack of distinctiveness...

4. A typical example of Closed Generic TLD Applications

"Among the companies that are trying to obtain a monopoly on a generic term representing or closely linked to their own economic sector, major tire manufacturer applied for the generic term TIRES:

— application # 1-2123-56973 for TIRES by Bridgestone Americas Tire Operations, LLC;

— application # 1-1884-1217 for TIRES by The Goodyear Tire & Rubber Company.

"Both applicants are major stakeholder of the tire industry... and have organized their applications on a closed registry model.

5. A risk increased by the terms of the Revised Registry Agreement

"In connection with the operation of the registry for the TLD, in principle, the Registry Operator must not register domain names in its own right. As an exception, closed applications for generic TLDs can be filed in application of the Registry Operator Code of Conduct... which provides: 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,.. and (iii) application of this Code of Conduct to the TLD is not necessary to protect the public interest.

"Although public interest was not defined by ICANN, could an application seeking exclusive access to a common generic string that relates to a market sector be consistent with the protection of public interest?

6. Monopoly situations are detrimental to consumer.

"The main risk of delegating of theses TLDs under the rules requested by the applicants is the capture of the whole tire online sales channel by one of these two operators. This would surely have anticompetitive consequences and limit consumer choice across the Internet:

— competitors will be prevented from using those generic TLDs to compete with the string owner;

— consumers will have access to offers coming from one single player, which means that they will be captive of one single tire manufacturer."

Nathalie Dreyfus. Dreyfus & associés, for Michelin
LINK

(Michelin has 115,000 employees. Despite having been established in 1889, ie. long prior to the Internet itself, ICANN will deny Michelin access to .tires domains if either Bridgestone or Goodyear is granted closed ownership of the .tires registry - Ed.)

Mar 06: Michelin comment on Closed Generic TLDs

USPS Objects to being Prohibited from Owning the Domain: Priority.mail

"...The (United States) Postal Service notes that a closed registry model is particularly inappropriate and contrary to the Public Interest in connection with this specific applied-for string (dot.MAIL). The term, 'mail' designates services rendered... which are highly regulated and charged with an inherent governmental function. The security and stability of global international mail depends upon the trusted services provided by these entities and on open access to Top Level Domains where the public using mail services can readily reach the entity it views as providing these trusted services. In relation to the mailing public in the United States, the term 'mail' by itself is a designator of services provided by the United States Postal Service.

"The Postal Service also notes that the operation of a (dot)mail registry in a closed manner would potentially restrict its rights and interests in the following ways:

(1) the USPS would not be able to obtain a Sunrise Registration for terms which are otherwise eligible... For example, the Postal Service owns a longstanding registration for Priority Mail®, but would not be able to secure a second level registration for www.prioritymail.mail...

(2) UDRP* remedies would be restricted. For example, in connection with the USPS registration for Priority Mail®, if a (dot)mail closed registry launches and a third party that is an approved business partner of the closed registry (as provided for in one of the (dot)mail closed applications) obtains a registration for www.priority.mail... in bad faith, the USPS, even if able to prove all the necessary elements in a UDRP proceeding, would not be able to obtain the transfer of the infringing domain without qualifying as an 'approved business partner' of the registry owner.

"In light of these considerations and in response to the call for Public Comment, the United States Postal Service strongly encourages ICANN to reject any application proposing to operate the (dot)mail registry in a closed manner."

Anne Aikman-Scalese, for United States Postal Service
LINK

(*UDRP refers to: Uniform Domain Name Dispute Resolution Policy, a method rightful domain owners may retrieve names from cybersquatters - Ed.)

Mar 07: United States Postal Service Comments - "Closed Generics"

Closed Generic TLDs Will Become Uniquely Associated With The Products

"We are writing to express concern that ICANN may issue gTLDs where applicants can control access to such domains in closed or highly-restricted fashion. Our concern is consistent with ICANN’s stated goal of “enhancing competition and consumer choice” with the introduction of new gTLDs. (cited) Contrary to this goal, issuance of those gTLDs to applicants intending to control them as closed registries threatens to severely hamper competition and consumer choice, particularly where applicants seek gTLDs for generic terms in industries where they hold market share.

"As representatives of the video game industry, we find two current applications particularly troubling. Amazon EU and Beijing GameaseAge Digital Technology Co., Ltd. have submitted applications for issuance of the generic .game domain, and stated their intent to administer the domain in closed or restricted fashion. (cited)

"If either of these applications is granted, no one other than the applicant and its chosen designees will be able to register second-level domain names in the .game TLD, leaving the applicant free to exclude competitors and exploit the generic .game TLD for its sole benefit. The owner of the .game registry will:

• be positioned to gain unfair advantage in direct navigation and online search;
• become uniquely associated with the category of products it offers through its association with the relevant domain;
• be able to prevent substantially similar TLDs such as .games or .gamer in the future; and
• likely obtain a perpetual monopoly in the .game online space since the ICANN registry agreements permit unlimited automatic renewals.

"This combination of market advantages from control of the .game gTLD will create steep barriers to entry for others in the game industry, and will ultimately harm the interests of consumers in the computer and video game market."

Christian Genetski. Entertainment Software Association
David Sweeney. Interactive Software Federation of Europe
Jayson Hilchie. Entertainment Software Association of Canada
Ron Curry. Interactive Games and Entertainment Association
LINK

(These four large game associations whose releases account for a majority of the game software sold in most countries made a joint submission - Ed.)

Mar 07: ESA, ESAC, ISFE and iGEA Comment on .GAME Closed Generic TLDs

Generic Words Cannot be Monopolized At Law

"Indigo recently became aware that applications have been filed for generic top-level domains ('gTLDs') that comprise important terms for the book industry, and that are intended for use on a restricted or closed basis by the applicant. Like many companies, Indigo was generally aware of the proposed launch of new gTLDs, but was unaware and caught by surprise by the fact that applications could apparently be filed for closed gTLDs covering commonly used and purely descriptive industry terms. Prior to learning about these applications, it was our understanding that only gTLDs covering brand names could be operated on a closed basis.

"We are writing to express our concern about, in particular, Amazon's applications for the closed gTLD strings .book, .author and .read. The use of these descriptive terms is of obvious and paramount importance to all stakeholders in the book industry in all English-speaking countries.

"To Indigo's direct knowledge, Amazon is a key competitor and a dominant online retailer of books and eReading devices. Indigo strongly believes that competition will suffer if Amazon is granted the right to operate closed gTLDs... In fact, it is difficult to conceive of terms that more clearly describe books and eReading devices, and how they would be marketed, than the words 'book', 'read' and 'author'.

"Further, such gTLD strings that are common industry terms are by definition memorable in a marketing sense, and are likely to draw consumers to a website. Amazon's extensive publishing and distribution rights, combined with its marketing strengths, empower it to make .book, .read and other gTLDs the key internet destinations for the purchase of books and eReading devices. This is the precise reason why such generic words used in generic ways cannot be monopolized at law, and should not be allowed to be monopolized over the Internet."

Kathleen Flynn. Indigo Books & Music Inc.
LINK

(NOTE — this comment also mentions that Amazon has also applied for the .book string in Japanese - Ed.)

Mar 05: Closed gTLD applications for important industry terms, such as .book, .read and .author, should be refused

Closed Registries Look Set to Dominate Entire Market Sectors

"The lack of clarity how certain closed registries will operate their DNS monopoly with search engine operators, is an understandable concern to the existing eco-system and this type of innovation sets an unprecedented global dominance in favor of a small number of existing dominant market organizations...

"Within this context, it cannot be argued that consumer choice will not be compromised, by a new form of DNS architecture, that looks to dominate entire market sectors. Nor can the difference between a 'generic product dot com' and a 'dot generic product' be equated as having a similar market value, when the latter has the possibility of commanding an entire suite of 'generic product dot generic product'.

"... the following areas remain to be addressed with purposeful guidelines to safeguard the further extension of the current (ICANN) gTLD application guidelines, Code of Conduct and New Registry Agreement:

...2. The current purpose and intent of the 'walled garden' approach for each 'closed generic' gTLD, for the sole use of the applicant, has not been defined in the current guidelines. Therefore as with the initial intent and use of existing gTLD's, the code of conduct of 'sole and perpetuity rights' have yet to be evaluated, discussed and decided within the ICANN stakeholder model.

3. The privatisation at the exclusion of public access or future right of access to the Domain space of the gTLD, and/or is in the 'public's interest' will need to be explained by the applicant.

4. How will the search engines react to a predominance of gTLD's under the pre-dominance of certain key organisations for example, if they dominate under every domain content regarding the list of goods and services?

5. How in the 'public interest' will there be a balanced non-bias representation in the page listings under each search term made in the URL, for good and services pertaining to baby, hair, cloud services, book etc... if exclusive rights are exercised by a predominant Registry?..."

Kristina Macaulay
LINK

(This is a personal comment, though Kristina is a member of ICANN's Non-Commercial Users Constituency - Ed.)

Mar 07: Personal Contribution to Closed Generic Public Comment Request

New gTLDs Proposal Was Half-baked

"The very existence of this comment period, seeking late guidance regarding "closed generic" gTLD applications, demonstrates convincingly that the ICANN Board pushed through a half-baked proposal, with artificial deadlines promoting the interests of insiders, rather than waiting until there was a thorough community consensus around a solid plan. Now the chickens should come home to roost.

"...ICANN only considered its own plan, pushed by its insiders, and gave no consideration to other plans produced by the community. That was wrong.

"By abandoning the current new gTLD plan, ICANN can recognize that it needs more time to 'get things right' rather than cut corners and 'do things fast.' "

George Kirikos
LINK

Feb 06: Existence of this comment period demonstrate new gTLDs proposal was half-baked

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