United States Postal Service Comments - "Closed Generics"
- To: "'comments-closed-generic-05feb13@xxxxxxxxx'" <comments-closed-generic-05feb13@xxxxxxxxx>
- Subject: United States Postal Service Comments - "Closed Generics"
- From: "Aikman-Scalese, Anne" <AAikman@xxxxxxxxx>
- Date: Thu, 7 Mar 2013 21:13:54 +0000
Comments are submitted on behalf of the United States Postal Service. The
Postal Service previously submitted comments on two applications for (dot)mail
in which the applicants propose to operate closed registries. Without
prejudice to other potential objections to these and other applications for
(dot)mail, the Postal Service notes that a closed registry model is
particularly inappropriate and contrary to the Public Interest in connection
with this specific applied-for string. The term, "mail" designates services
rendered by governmental or quasi-governmental entities which are highly
regulated and charged with an inherent governmental function. The security and
stability of global international mail depends upon the trusted services
provided by these entities and on open access to Top Level Domains where the
public using mail services can readily reach the entity it views as providing
these trusted services. In relation to the mailing public in the United
States, the term "mail" by itself is a designator of services provided by the
United States Postal Service.
The Postal Service also notes that the operation of a (dot)mail registry in a
closed manner would potentially restrict its rights and interests in the
(1) the USPS would not be able to obtain a Sunrise Registration for terms which
are otherwise eligible for the Sunrise Rights Protection Mechanism. For
example, the Postal Service owns a longstanding registration for Priority
Mail®, but would not be able to secure a second level registration for
or an e-mail address (in the case of a closed application which proposes to
provide e-mail addresses only) for
prioritymail@.mail<mailto:prioritymail@.mail>. Nor would the Postal Service be
eligible to secure an e-mail address in the form of
priority@mail<blocked::blocked::blocked::blocked::mailto:priority@mail> if an
exception were granted at a future point in time to allow such a domain to
eliminate the "dot" in the url. Although not contemplated by any closed
registry application for (dot)mail, this specific possibility is contemplated
by one (dot)mail application and is presumably not foreclosed to any closed
(2) UDRP remedies would be restricted. For example, in connection with the
USPS registration for Priority Mail®, if a (dot)mail closed registry launches
and a third party that is an approved business partner of the closed registry
(as provided for in one of the (dot)mail closed applications) obtains a
in bad faith, the USPS, even if able to prove all the necessary elements in a
UDRP proceeding, would not be able to obtain the transfer of the infringing
domain without qualifying as an "approved business partner" of the registry
In light of these considerations and in response to the call for Public
Comment, the United States Postal Service strongly encourages ICANN to reject
any application proposing to operate the (dot)mail registry in a closed manner.
On a more general note, the Postal Service further encourages ICANN to
carefully examine all proposed closed registries for strings that may be
loosely characterized as "closed generics" on a case-by-case basis. However,
this case-by-case analysis should take into account the fact that some terms
which may be viewed in the abstract as "generic" or "merely descriptive" may
actually be registered trademarks and/or may have acquired secondary meaning as
brands in accordance with well-established and generally accepted principles of
trademark law and should not be classified as "closed generics". Common
examples may be found among certain (dot)brand applications such as "apple"
being an otherwise generic term that is registered for goods other than apples.
Individual analysis of applications in this category is necessary due to
differences across industry sectors and differences in the proposed operation
of the TLD as more fully described in each application.
Because each so-called "closed generic" application may involve differing
considerations as to the Public Interest in granting exceptions to the ICANN
Registry Agreement, each such application should be evaluated independently.
At this stage of the scheduled launch of the new gTLD program, the most
appropriate mechanism for conducting this analysis may be in the context of
String Contention procedures which permit resolution "through community
priority evaluation or by other means, depending on the circumstances." (AGB
4.1.1) . A framework already exists for ICANN to separately consider the value
of Community-based applications in String Contention. A similar approach could
be applied in the String Contention process for analysis of the Public Interest
in granting proposed exceptions to the open registry model. When such so-called
"closed generic" applications are not in String Contention, individual
evaluation of the Public Interest is recommended. In both scenarios, public
comment should be sought regarding each such applied-for, so-called "closed
The United States Postal Service appreciates the opportunity to comment and
strongly encourages ICANN to institute a reply period in order to permit
responses to public comments filed on this important topic.
on behalf of the United States Postal Service
[cid:556462120@07032013-30C1]Anne E. Aikman-Scalese
Lewis and Roca LLP • Suite 700
One South Church Avenue • Tucson, Arizona 85701-1611
Tel (520) 629-4428 • Fax (520) 879-4725
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