Comments on closed generics

[Rubens Kuhl <rubensk@xxxxxx>]

Commenter: Rubens Kuhl
Affiliation: NIC.br
SOI: https://community.icann.org/display/gnsosoi/Rubens+Kuhl+SOI


We thank the opportunity to comment on so called "closed generics", offering 
four discussion points and two remedies for the concerns raised by the 
community. 

1. Dividing new gTLDs with eligibility restrictions between "dot brands" and 
"closed generics" is something we don't agree that is feasible. What is a brand 
in one industry or juridisction is a generic name in most others; most 
well-known brands are actually generic dictionary words or place names, that 
only amount to brands within specific contexts. In the domain name system, the 
context are the TLDs, so there is no context for the TLDs. If eligibility 
restrictions are a factor in determining whether the TLD is accepted or not, 
both "dot brands" and "closed generics" need to have a single, unified outcome 
of that decision.

2. Following the rules on the AGB, applicants to standard new gTLDs have stated 
in good faith what their registration policies would be, regardless of the fact 
that those registration policies wouldn't be part  of the gTLD agreement. 
Applicants that applied to so called open generics are not bound to keep open 
registration policies, only to follow ICANN's consensus policies and applicable 
national laws, so what is currently classified as open might change in the 
future. Establishing a position against closed generics without AGB rules 
against them can make applicants to further rounds be less transparent about 
the policies they will implement. 

3. The discussions about who could apply for new gTLDs and what would be the 
registration policies were part of all new gTLD pilots since 2000, and for this 
round the bottom-up decision was to only require the registry to be a legal 
person and not either require, oppose or prefer registration restrictions. 
Closed generics (or "boutique" TLDs) were listed as possible outcomes from new 
gTLD process, as can be seen in this mailing list thread from the vertical 
integration group: http://forum.icann.org/lists/gnso-vi-feb10/msg00560.html . 

4. The new gTLD program was created to foster consumer choice and innovation. 
While the expansion of the namespace provides consumer choice, innovation comes 
by new business models that are not the vanilla domain registration ones. 
Closed generics and innovative business models are difficult if not impossible 
to separate, so any attempt to categorize one could hinder the other.


We encourange ICANN to address the concerns brought up by the community within 
the boundaries of the AGB, by exercising what is listed in the AGB that ICANN 
could refer concerns to competition authorities. The strong voices on closed 
generics suggest that in this case ICANN should refer the concerns to 
competition authorities. As standard applications do not have eligibility 
policies bound by contract, if competition authorities require a new gTLD 
registry to open up its registration eligibility requirements, that can be done 
by the registry directly. 

We note that governments have already listed competition issues as reasoning to 
GAC Early Warnings as in 
https://gacweb.icann.org/download/attachments/22938690/Beauty-AU-76087.pdf?version=1&modificationDate=1353389612000
 . Such early warnings or possible GAC advice are  AGB mechanisms for 
addressing competition concerns during evaluation. 

We also note that ICANN board has a mandate specified in ICANN by-laws to act 
in the public interest, so it has discretionary power to make decisions based 
on such requirements. If specific winning applications raises concerns, they 
can be denied root delegation. What is inappropriate is applicants within a 
contention set with the so called "closed generics" trying to block those 
applications when there is no AGB rule to give priority to standard TLDs with 
no eligibility requirements.


Rubens Kuhl
NIC.br