United States Postal Service Comments - "Closed Generics"
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 following ways: (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 www.prioritymail.mail<blocked::blocked::blocked::blocked::http://www.prioritymail.mail/> 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 registry. (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 registration for www.priority.mail<blocked::blocked::blocked::blocked::http://www.priority.mail/> 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 owner. 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 generic" string. 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. Respectfully submitted, Anne Aikman-Scalese on behalf of the United States Postal Service [cid:556462120@07032013-30C1]Anne E. Aikman-Scalese Of Counsel Lewis and Roca LLP • Suite 700 One South Church Avenue • Tucson, Arizona 85701-1611 Tel (520) 629-4428 • Fax (520) 879-4725 AAikman@xxxxxxxxx<mailto:AAikman@xxxxxxxxx> • www.LewisandRoca.com/Aikman<http://www.lewisandroca.com/Aikman> P Please consider the environment before printing this e-mail. This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. 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