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Letter to ICANN on Big Brands Proposed Usage of Generic Domain Extensions

Michele Neylon

We have been taking an active interest in the development of the new TLD program by ICANN and excited by the many opportunities and challenges that this "opening up" will bring to us, our customers and the internet ecosystem as a whole.

However, we also have our concerns about how some entities wish to use generic domain name extensions as "walled gardens".

I posted about this back in June, as did Dave Winer.

After discussing this a bit further with other industry colleagues the letter below was drafted and is being sent to ICANN's senior management, the Independent Objector and the GAC chair.

* * *

Mr Fadi Chehadé, President & CEO, ICANN
Dr Steve Crocker, Chair, ICANN Board
Mr Akram Atallah, COO
Professor Alain Pellet
Ms Heather Dryden, GAC Chair

The rapid growth and adoption of the Internet over the past two decades has transformed the lives of billions of people, and reinvented communication, commerce, and society. Countless economic and cultural barriers have been eliminated as a direct result of the freedom of choice and openness made possible by the Internet.

Notably, the stated goals underlying ICANN's current efforts to expand the Domain Name System (DNS) by adding new generic Top-Level Domains (gTLDs) are to "increase competition and choice."

We, the undersigned individuals and organizations, support those goals wholeheartedly and without reservation.

However, we are concerned that some pending gTLD applications seek to be operated in a "closed" manner in reliance upon Section 6 of Specification 1 ("Registry Operator Code of Conduct") in Module 5 ("Base New gTLD Agreement") of the Applicant Guidebook, 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, (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.

Based on our collective industry experience, we are of the opinion that the underlying intention of Section 6 was to allow for the operation of closed gTLDs only under very defined circumstances.

Specifically, that closed gTLDs should be reserved for only those strings in which the applicant possesses established (i.e., legally recognized) intellectual property rights, basically brand names. We believe that this interpretation of Section 6 is inherently logical especially in view of the discussions that preceded the opening of gTLDs — which focused, in very large part, on expanding choices and opportunities as well as promoting innovation, for Internet consumers worldwide.

Further, generic words used in a generic way belong to all people. It is inherently in the public interest to allow access to generic new gTLDs to the whole of the Internet Community, e.g., .BLOG, .MUSIC, .CLOUD. Allowing everyone to register and use second level domain names of these powerful, generic TLDs is exactly what we envisioned the New gTLD Program would do. In contrast, to allow individual Registry Operators to segregate and close-off common words for which they do not possess intellectual property rights in effect allows them to circumvent nation-states' entrenched legal processes for obtaining legitimate and recognized trademark protections.

Accordingly, we respectfully request that ICANN clarify the circumstances under which the Section 6 exemption shall apply, and if necessary, allow applicants to amend their applications to comply with such clarification.

As an alternative, the Applicant could demonstrate that they have internationally established and exclusive rights to the string in question, and that it is not a generic term.

Our goal, as always, is to foster consumer choice and nurture a free and open Internet.

With sincere thanks for your consideration,
Michele Neylon, Blacknight
Scott Pinzon, former Director of Marketing and Outreach, ICANN
Luc Seufer, EuroDNS
Francesco Cetraro
Nigel Roberts
Chris Kurk, DomainPeople Inc
Chris Pelling, Netearth One Inc
Michael Shohat, Cronon AG
Paul Andersen, Arctic Names
Frédéric Guillemaut, MailClub.fr
Robert Birkner, 1API GmbH
Kelly Hardy, Kelly Hardy Consulting
Gerardo Aristizabal, Cci reg s.a.
Benny Samuelsen, Nordreg AB
Colin McDermott, Banc Media
Tom Gilles, newgtldsite.com

By Michele Neylon, MD of Blacknight Solutions. More blog posts from Michele Neylon can also be read here.

Related topics: ICANN, Internet Governance, Policy & Regulation, Top-Level Domains

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