Accor Comments on the Revised New gTLD Registry Agreement

[Dreyfus & associés <contact@xxxxxxxxxx>]

The following comments are submitted on behalf of Accor.

 

 

Accor, the world’s leading hotel operator and market leader in Europe, is
present in 92 countries with more than 3,500 hotels and 450,000 rooms under
various hotel brands: Sofitel, Pullman, MGallery, Grand Mercure, Novotel,
Suite Novotel, Mercure, Adagio, ibis, ibis Styles, ibis Budget, Hotel
Formule 1, hotelF1 and Thalassa sea & spa. With more than 160,000 employees
in Accor branded hotels worldwide, the Group offers its clients and partners
nearly 45 years of know-how and expertise. Accor operates several websites
through which Internet users can quickly and easily find and book hotels.

 

In parallel with the Public Comment period related to “Closed Generic” gTLD
Applications, Accor wishes to express the following comments and concerns in
relation to Specification 9 (Code of Conduct) and Specification 11 (Public
Interest Commitments) of the ICANN Revised New gTLD Registry Agreement
(“RRA”).

 

 

1. We understand that Specification 9 and Specification 11 both aim at
improving the governance of the Registry / Registrar relashionship and
allowing Applicants to formalize their commitments in terms of Public
Interest.

 

2. The Code of Conduct (Specification 9) states that 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 under the
following provisions of Specification 9: “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”. 

 

This provision was drafted in the first place specifically in order to
create “dot-brands”. However, at the time, no distinction between
generic/commonly used words and brands was made by ICANN.

 

Therefore, unfortunately, any applicant who wishes to operate a “Closed
Generic” gTLD can file an exception as long as the exemption conditions are
fulfilled. Such exemption may be granted by ICANN at ICANN’s reasonable
discretion. In particular, the Registry Operator must prove that there is no
infringement or at least no risk with regards the public interest. 

 

Although “public interest” has not been specifically defined by ICANN, we
strongly believe that an application seeking exclusive access to a common
generic string that relates to a particular industry or market would not be
consistent with the protection of public interest, and, in fact, would be
highly detrimental to the same. Any application so granted would indeed
preclude all other players in this industry or market to compete on an equal
basis with the applicant, thereby limiting consumer choice across the
Internet. 

 

3. Furthermore, the introduction of Specification 11 may lead certain
“Closed Generic” gTLD Applicants to rely on this Specification to impose
certain restricted registration rules which they will present to be in the
public interest.

 

However, in the case of a common generic string relating to a particular
industry or market, any such restricted registration rules will necessarily
have anticompetitive consequences, thereby limiting consumer choice across
the Internet and contradicting the public interest .

 

4. Applications such HOTELS from Booking.com B.V. and HOTEL, HOTELES and
HOTEIS from Despegar Online SRL are typical cases of “Closed Generic” gTLD
Applications which may be eligible to the exemption under Specification 9
and may attempt to impose restricted registration rules under Specification
11.

 

5. ICANN is a governance system with the responsibility of protecting and
promoting public interest and consumer trust. 

 

For the reasons set forth above, we urge ICANN to resolve the ambiguity
surrounding these applications and to rule that « Closed Generic » gTLD
applications such as HOTEL, HOTELS, HOTEIS, HOTELES do not comply with the
limited scope of the exception above-mentioned.

 

We therefore urge ICANN to rule that:

(i) exemption under Specification 9 cannot be requested for « Closed Generic
» gTLD applications such as HOTEL, HOTELS, HOTEIS, HOTELES; and

(ii) Public Interest Commitments must be commitments in the interest of the
public only and shall not include any commitment in the interest of the
Applicant.

 

 

Best regards 

 

Nathalie Dreyfus

 

 

Dreyfus & associés

Conseils en Propriété Industrielle - Intellectual Property Attorneys

 

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+33 (0)4 82 53 90 42

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