Personal Statement Regarding "Generic Closed" gTLDs:

["Seth M Reiss" <seth.reiss@xxxxxxxxxx>]

Dear ICANN Board and Staff:

 

I am an ALS representative to NARALO and member of various working groups,
and am a WIPO UDRP panelist.  I make this statement in my personal capacity
and not in my capacity as a representative of my ALS, any ICANN
constituency, or WIPO panelist.

 

Like the oceans and outer space, generic word TLDs form part of the global
resource to be shared equitable among all of mankind and as such, should not
be delegated in a closed fashion to any commercial or non-commercial
interest.  

 

Under international law, commonly held property is termed terra nullius and
depends upon the dual assumptions that such zones are free for the use and
exploitation of all and that persons should not be deprived of the
protection of the law merely because of the absence of a state sovereignty
over such zones.  Under this analysis, one could make a Limited Public
Interest Objection arguing that the existence of international law norms
governing the protection and regulation of commonly owned resources preclude
the delegation of a generic term TLD to a registry who is not under some
reasonable obligation to make the TLD available to all on fair and equitable
terms.

 

When considering the issue from a policy perspective, both economic and
non-economic detriment can be expected to result in not allowing the
community (here the world community having an interest in the "generic
thing") to reflect their community through the gTLD name space and by
instead allowing some entity that will have the authority to close the TLD
the exclusive rights to use or not-use a particular generic term as a TLD.

 

Geographic and ethnic designations also represent shared resources, but
shared somewhat more narrowly than generic designations.  Geographic and
ethnic designations are shared only among the individuals and entities
constituting the particular geographic or ethnic community. Similar economic
and non-economic detriments can be predicted. The case for geographic and
ethnic designations is perhaps more compelling, because its members are
often times more discrete and because they do not have alternative
designators at their disposal. In this sense, the designations might be
regarded as "immutable." Yet simply because the case against closed
geographic or ethnic designators is more compelling than the case against
closed generic designators, does not mean allowing closed generic
designators is therefore OK.  It is not.

 

It is no answer that certain gTLD applicant's may hold strong trademark
rights in the proposed gTLDs.  Trademark rights are never awarded to generic
marks, that is, marks that describe the thing.  Trademark rights are also
never awarded for geographic designations that are inaccurate, deceptive or
misleading.  One must remember that trademark rights are recognized only in
respect of specific goods and services, rarely if ever in respect of all
types of goods and services, and only in respect of specific geographic
regions, not all geographic regions.

gTLDs, on the other hand, encompass all goods and services and all
geographic regions.  This inherent conflict between the historic regulation
of trademark rights and delegation of domain names was the reason the UDRP
was promulgated in the first place. The UDRP and its panels recognize that
proprietary rights cannot be claimed in generic and geographic terms.

 

Generic closed gTLDs can be expected to function as would a deceptive
trademark, misleading consumers and other members of the Internet public in
respect to what the consumer would expect to find when pointing to a domain
name ending in that generic term. Proprietary claims to marks that would be
expected to deceive or mislead consumers are universally disallowed.

 

That generic terms are regularly awarded in closed fashion at the second
level is not good cause for allowing the same to occur at the top level. The
top level clearly holds ultimate prominence and in the minds of the Internet
consumers. It is unfair that an ICANN policy should result on a burden being
placed on all Internet users to learn that when a word appears in the top
level of a domain name, it does not mean what is says.

 

If generic terms cannot be delegated to the top level in a manner that
provides to each interested individual, business, organization and
government the ability to be represented therein under conditions that are
both rationale and equitable, then perhaps it would be preferable not to
deploy the particular gTLD in the first place.

 

Your consideration of these remarks is greatly appreciated.

 

Regards,

 

Seth M. Reiss

Seth M. Reiss, AAL, ALLLC

dba Lex-IP.com

Intellectual Property & Internet Law

3770 Lurline Drive | Honolulu, HI 96816

(: 808.521.7080 | 7: 808.675.5805 | *:  <mailto:seth.reiss@xxxxxxxxxx>
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