United States Postal Service Comments - "Closed Generics"

["Aikman-Scalese, Anne" <AAikman@xxxxxxxxx>]

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>
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