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New gTLDs: Let the Gaming Begin (Part I - TLD Front Running)

A series of recent applications for national trademark rights in terms that correspond to likely strings for new top-level domain names, or TLDs, (e.g., ".BLOG") highlight just one way in which ICANN's new generic TLD (gTLD) application process is likely to be "gamed." But it is also a strategy to which some trademark holders may feel compelled to resort to defend their rights to that string. Unfortunately, it does not appear that ICANN is addressing these important public policy considerations. In fact, based upon some of the provisions in the proposed draft registry agreements, it appears that ICANN staff's actions may increase, rather than decrease, the ambiguity that opens the door to such gaming of the system.

Click here to download my latest PFF paper on this subject (below), published by The Progress & Freedom Foundation, or click here to read more of my recent work at PFF.

By Michael D. Palage, Intellectual Property Attorney and IT Consultant

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Comments

.music is gaming and front-running? Quite disgusted with your allegations. By Constantine Roussos  –  Nov 22, 2009 8:26 pm PDT

Hey Michael,

I am quite upset with your front-running and gaming allegations about the .music logo. The logo was designed way before this whole ICANN new gTLD 2008 Paris announcement was made.

Calling me and Music.us a gamer of the system and acting illegally is quite insulting to myself and my constituents. You accuse me of front-running, which is an illegal practice.

I designed the logo myself and trademarked it. It will continue to be our logo and be trademarked LEGALLY irrespective your accusations. We are a music company, and this will exist before and after any ICANN application. I am also a composer and I copyright my works. You have a problem against that too? I wrote a song called ".music" and copyrighted it. Is that front-running too? Maybe it is illegal for me to write a song and name it ".music" right? Why don't you write another article about how I wrote a song and will be using it to game or "entertain" ICANN.

I suggest you cease these defamatory accusations of me, my organization and my creativity in logo design which you call "fanciful". My goal was not to make the logo look fancy. Let me explain this too. The logo represents the music community. Music.us represents the music community. "us" is a pronoun and it is used to describe community and togetherness (even though you will say it stands for "united states"). Your lack of music knowledge amuses me. There is NO note in the logo. That is called a musical treble clef that is used in music notation books. Actually I was so creative and "fanciful" that the I switched the treble clef direction to make it look like an "s". The star is a symbol for "rockstar" or "popstar". There is a purpose behind the logo and it has nothing to do with ICANN. I have been using it in business for years now. Yea, I even sponsored ICANN using the logo.

If you think that merely a trademark will win you a community TLD you are terribly wrong. I think ICANN's community scoring is a big barrier to entry and only tight, restricted entities can claim community. The .music initiative is a closed, restricted community with a rotating board representing different stakeholder groups in the music industry/community - a tight governance/oversight body.

If you have any issues, you could have easily asked me for information as opposed to not doing your homework and accusing me of illegal behavior and trying to game ICANN (and in the process the music community which is who we are talking about here). I have been as public as anyone has been about the .music initiative and outreach efforts. If you have any questions, all you have to do is ask and not accuse. Even though I am not an ICANN "veteran" like as yourself and only been in this whole "ICANN community" for 2 years, you should respect other people's business and credibility. The "stealth" initiative are going nowhere. We are not one of them.

I suggest you refrain from using the word gaming and illegal front-running when you talk about myself. I advise you not to mention my initiative as a "gaming" or "front-running" scheme. I am not into playing games unless we are talking Playstation 3 or Wii (especially if it is FIFA 2010 or GuitarHero).

I believe ICANN is capable enough to figure out what applications are credible and which are not. Any "normal" person with no ICANN experience can figure this out. It is called common sense.

Constantine Roussos
.music
.music on Twitter
.music on Myspace

So I have one simple question for you to answer By Michael D. Palage  –  Nov 23, 2009 10:29 pm PDT

Constantine,

I never accused you of engaging in illegal conduct. Now if Amanda Taylor, who appears to be a 19 year from Oxnard California, wants to point to a Wikipedia article and equate my definition of TLD Front Running to an illegal practice, there is not much I can do about that. However, you should really seek legal advice from a competent attorney, and not a teen citing Wikipedia.

I stand by my opinion that you and others that seek to propose an EOI that deviates from established ICANN precedent by imposing a substantial fee and requiring mandatory participation is not in the best interest of the global Internet community, or in your case the global music community. What you and the other prospective TLD applicants are merely trying to do is reserve your "place in line" before the final Applicant Guidebook has been published, to the detriment of other potential applicants that may want to wait until the final criteria is published.

John Berryhill has tried to explain this to you in connection with the thread of my other article but you have chosen to ignore the very logical positions John has put forth. Therefore, I am not going to waste any more of my time trying to convince you of how self serving that position is, and how it is not in the best interest of either the global Internet community, or in your case the global music community.

With regard to your trademark, the S is a fanciful element of the mark. This is a legal term of art and I would again suggest that you seek competent legal advice to assist you in responding.  I could really care less about your registration or the other countless other dot TLD registrations/applications. What I do care about is how you or others might seek to wrongfully exert those trademarks against the potential operation of a generic TLD.

Therefore I have a real simple question for you, which I hope you can answer. If another third party is awarded the .MUSIC TLD, and they market themselves as .MUSIC, and they DO NOT use your fanciful "S" element do you believe that any potential trademark rights that you may acquire would/could block the operation of the .MUSIC TLD by that third party?

So please just answer this one simple question with a yes or no and then we can continue this dialog.

Michael, unfortunately many lawyers think in black By Constantine Roussos  –  Nov 23, 2009 11:45 pm PDT

Michael, unfortunately many lawyers think in black or white. I understand a lot about the law. I attended Harvard Business School, have an MBA and certainly have launched my share of businesses. I do understand how things run. Seems you and your "interests" groups do not really understand the Internet and keep on crying about the same things. If trademarks are such an issue why isnt anyone complaining about IDN Fast Track? You think users from other countries can not register your trademarks in their own language? So my trademarks dont matter and your clients' ones do?

I will answer your question. I believe Trademarks should NOT be exclusively used to gain advantage or win a TLD. I trademarked the design so just deal with it. However your claims of gaming and front-running are ridiculous.

What I care about is a fair process and full disclosure and transparency. Some TLDs are different from others. You can claim as a lawyer that all TLDs are equal and should be treated the same but you are quite wrong. Same with registry-registrar integration. The answer is it all depends and it is not black or white like you lawyers see it. I have spoken to many big corporate employees and marketing directors and they love new TLDs and their potential. Kind of funny that when it reaches the same corporation's lawyers the position changes.

So let me go further with .music. I do not need legal advice to respond to you. I believe in trademarks and their usage in business.

My views are ones of common sense and authenticity. You want to go for .music, then you require global outreach initiatives and being public for at least a year so that you get feedback from the music community. Also there needs to be representation at all big music conferences. We are there too. Also there should be meetings with significant stakeholder groups. The .music initiative represents the interests of many groups: major, indies, labels, publishers, ticketing, manufacturers, music media, studios, engineers, producers, musicians and so forth. You need to guarantee representation of ALL interest groups.

My issue is with the "stealth" applicants who have not initiated any outreach efforts and are just there to put in an application and think they can win by filling in the blanks in the application. Then we have the issue of ICANN determining what is a community. I think the scoring system is quite biased towards auctions. Nice going for a non-profit. There is nothing in the community scoring about governance, accountability towards multiple stakeholder groups and rotating boards that represent interests of different groups within a large community. That to me is the real stuff. I can talk law and bogus impractical concepts like front-running and gaming. You can not run a business based on gaming and front running alone in today's viral internet.

However if someone does gain an advantage via piggybacking my efforts over the last few years, there will be a potential problem. I want competition and I want all applicants to come out and serve their interest groups. This has nothing to do with trademarks but has to do with outreach, building credibility as well as goodwill.

If you want to start talking about some implementing any real policies I am open to discussing these with you. However crying about further economic studies and all that "corporate" junk is nothing I believe in. Just seems that all you "corporate" interest folks are followers who do not even listen to your customers. That I believe. I would even go further to say that ICANN is biased towards big business and corporate interests. I have been hearing the same thing from you and the other corporate attorneys. I think you are ultimately doing a dis-service to your customers, the people your corporations work for.

So you feel bad that a 19-year old talking bad about you? Would you like to hear some additional comments from musicians? All i need to do is send an email to the 1 million people who signed my petition to start commenting on the ICANN site. The more ICANN waits, the more you corporate attorneys get paid. And this is at the expense of niche groups that want their TLDs. You guys are hiding behind trademark law and then you ask me questions about how I would react to my trademarks and gaming. What makes big business trademarks more important than mine? Oh yea, they pay your bills and they can lobby pretty hard. Deal with it. You guys are gaming ICANN and the Internet community. You dont want solution, you want shutdown.

Customer is king. So don't underestimate the 19-year olds. Last thing I remember, they helped elect Obama. I think you should stop repeating the same things in your comments and start offering solutions. By saying that more time is required to research the "issues" is a cop out and seriously not an authentic reply. You are wasting everyone's time by saying "more time is needed to address certain issues." I say address them. You had years to figure out solutions. But you want termination not solutions. Right?

Let me ask you a question. Do you think any new gTLDs will have the success of .com? Do you think all of them together will amount to .com registrations? Give me your estimation on what percentage of new gTLD registrations are in comparison to .com. I guarantee you wont be able to give me an exact answer but will easily tell me your guess would be far less than .com. Right? I think we have mechanisms and legal routes to address any issues that might happen with new gTLDs including abuse and trademarks. You are overreacting. Your "its the end of the world" mentality is quite unrealistic in regards to new gTLDs and trademark law. Anyone can sue anyone for anything and do not need a logo trademark to do it.

I have no problems with discussing things with you. My answer is "it depends". Because Michael, things are not always black and white.

Constantine
.music

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