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CTIA Comments Opposing Closed Generic gTLDs

  • To: "comments-closed-generic-05feb13@xxxxxxxxx" <comments-closed-generic-05feb13@xxxxxxxxx>
  • Subject: CTIA Comments Opposing Closed Generic gTLDs
  • From: "Kathryn Dall'Asta" <KDallasta@xxxxxxxx>
  • Date: Thu, 7 Mar 2013 23:43:38 +0000

Mr. Fadi Chehadé, President & CEO, ICANN

Dr. Steve Crocker, Chairman, ICANN Board of Directors

Mr. Cherine Chalaby, Chair, ICANN's New gTLD Program Committee



CTIA-The Wireless Association® is the international nonprofit membership 
organization that has represented the wireless communications industry since 
1984.  CTIA represents companies and organizations associated with the wireless 
industry globally, including wireless carriers, suppliers, providers and 
manufacturers that contribute to wireless data services and products.



CTIA has not submitted comments to ICANN before, but the potential impact of 
the New gTLD Program on our community has triggered our comments on the "Closed 
Generic gTLD Applications" proceeding now open.



We join a rapidly growing group of companies, organizations and individuals who 
oppose Closed Generic gTLDs and the power they grant to Registries for 
exclusive authority and potential misuse within the Internet domain name 
system.  The global community expects ICANN to adhere to its principles to 
promote competition and consumer trust.  ICANN must avoid taking steps that 
would permit potentially anti-competitive activities in the New gTLDs.  CTIA 
urges ICANN to provide options that will allow New gTLD Applicants seeking 
Closed Generic gTLDs to bring their applications into compliance with the 
non-discrimination rules of the New gTLD Program.



I.                    ICANN Should Adhere to Its Published Rules and Principles 
of Competition and Consumer Protection



In opening the New gTLD Program, ICANN published rules in its Applicant 
Guidebook that reflect an approach of equal access and non-discrimination. In 
particular, the "Base Registry Agreement," to which all New gTLD applicants 
must agree, requires Registries to: "provide non-discriminatory access to 
Registry Services to all ICANN accredited registrars..." and bars any Registry 
from "register[ing] in its own right, except for limited management or 
technical purposes, or subject to the exception of section 6, of the Registry 
Code of Conduct."  Registry Agreement 2.9a, and Specification 9, respectively.



A narrow exception to the Registry Code of Conduct is available to applicants 
seeking exclusive use of all domain names in their applied-for TLD. Published 
at the end of the Registry Code of Conduct, this exemption is narrowly tailored 
to apply only in limited circumstances:



Registry Operator may request an exemption to this Code of Conduct, and such 
exemption may be granted by ICANN in ICANN's reasonable discretion, if Registry 
Operator demonstrates to ICANN's reasonable satisfaction that (i) all domain 
name registrations in the TLD are registered to, and maintained by, Registry 
Operator for its own exclusive use, (ii) Registry Operator does not sell, 
distribute or transfer control or use of any registrations in the TLD to any 
third party that is not an Affiliate of Registry Operator, and (iii) 
application of this Code of Conduct to the TLD is not necessary to protect the 
public interest.



Registry Code of Conduct, Specification 9, Section 6.



This exception was widely understood to allow companies with well-known 
corporate names and brands to apply for "Closed Brand" TLDs, e.g., dot-Sony or 
dot-Nike.  It was certainly not the intent or understanding of many in the 
ICANN Community, and organizations such as CTIA outside the ICANN Community, 
that the exception would allow a Registry to bar all competitors, or 
discriminate among competitors, in their access to domain names in a TLD whose 
"string" is generic or common for the services, products, industries or 
marketplaces of the relevant commercial sector.



II.                  Proposed Closed Generic New TLD Applications Are Contrary 
to the Public Interest Because They Violate Basic Principles of Commercial and 
Trademark Law



A Closed Generic TLD can never be "in the public interest" as ICANN's rules 
require.  Equal access and non-discrimination are hallmarks of the ICANN system 
and of open and fair competition.  If Closed Generic TLDs are granted, a single 
competitor will receive the exclusive right to register all the domain names in 
the generic space itself.  Should that occur, one firm in a competitive market 
would have the ability to discriminate by restricting access to its competitors.



Potential harms from a Closed Generic TLD include the ability to deny 
competitors the opportunity to register and use industry-relevant gTLDs and 
control of industry-relevant generic terms, which can place competitors at a 
disadvantage in the corresponding direct navigation and online search markets. 
Moreover, certain specific proposed Closed Generic TLDs are inherently 
confusing and potentially deceptive to consumers.  Given the generic nature of 
the TLD, consumers seeking out products, services and information within a 
particular area like mobile telecommunications will likely believe they are 
engaging with the full set of providers in the marketplace when, in fact, they 
are only receiving information, goods and services provided by a single company.



The following generic terms are both basic and ubiquitous within the wireless 
marketplace, yet multiple applicants have submitted closed generic applications 
to "wall them off" for their exclusive use: .MOBILE, .PHONE, .CALL, .TALK, 
.APP, .CLOUD and .SEARCH.  Each of these terms is central to the wireless and 
telecommunications industry's highly competitive market. Yet, in contravention 
of ICANN's public interest rules, certain applicants seek ICANN's permission to 
operate these specified TLDs in a closed and potentially anti-competitive 
manner.



These are not hypothetical concerns. Indeed, Dish DBS Corporation makes the 
following commitment, should its application for .MOBILE be granted:



Applicant plans to operate the proposed .mobile gTLD as a restricted, 
exclusively-controlled TLD and as such, will not be commercially offered for 
registration by the general public.  Thus, Applicant and its affiliated 
entities will have exclusive ownership and control over all second-level 
registrations within the TLD.



Public portions of the Dish DBS application available at 
https://gtldresult.icann.org/application-result/applicationstatus


Further, the grant of a fundamental generic term to a single member of the 
industry violates principles and norms of international trademark law.  
Trademark laws around the world prohibit granting any exclusive rights or other 
protections to generic words.  U.S. trademark law, for example, bars the 
registration of any mark that is generic or "merely descriptive" of the goods 
or services of the trademark applicant. 15 U.S.C. Sec. 1052(e). Trademark law 
further provides for the cancellation of any trademark that becomes, over time, 
the generic name for a particular good or service.  15 USC Sec. 1064(3).  Many 
of CTIA's member companies hold extensive international trademark portfolios 
and CTIA respectfully submits that the same protections for generic words, and 
restrictions on limitations, exist around the world.

III.                ICANN Should Either Deny the Challenged Closed gTLD 
Applications, or Seek Their Modification to Open TLDs



In light of these concerns, CTIA respectfully submits that ICANN should deny 
all applications for Closed Generic gTLDs or, at a minimum, require applicants 
for those gTLDs to withdraw their applications or modify them to be open.  Such 
an approach would foster competition and remedy the potential for harms to 
competitive markets that will arise from the operation of the specified Closed 
gTLDs.



By providing applicants with these options, ICANN would be offering applicants 
for Closed gTLDs a remedy originally proposed by Google.  Google, which applied 
for a variety of open and closed TLDs under the name of its wholly-owned 
subsidiary, Charleston Road Registry, offered to become an "Open TLD" if its 
application as a "Closed TLD" was denied:



"Charleston Road Registry intends to apply for an exemption to the ICANN 
Registry Operator Code of Conduct and to act as the sole registrar for the 
proposed gTLD.  Given that the proposed gTLD is exclusively intended for use in 
connection with Google's services, Charleston Road Registry believes that there 
is a reasonable case for such an exemption.  Should ICANN not approve this 
proposed exemption, Charleston Road Registry will facilitate a fair and 
equitable registrar process, providing open access to any registrar who meets 
ICANN accreditation guidelines."



CTIA supports the remedy proposed by Google that would permit any applicant for 
a Closed Generic TLD to modify their application and agree to operate as an 
"Open TLD."  In the alternative, ICANN should offer all Closed Generic TLD 
applicants the option of withdrawing their applications if they do not wish to 
modify their applications to operate as an "Open TLD."  CTIA further requests 
that ICANN not only enforce "open access to any registrar who meets ICANN 
accreditation guidelines," as Google provides, but require the Registry to 
accept registrations from all Registrants that meet clear and 
non-discriminatory criteria corresponding to the TLD string and the generic 
goods, services and marketplaces the TLD string represents.



Conclusion:

CTIA appreciates this opportunity to provide ICANN with comments on the 
implementation of its New gTLD Program. Should you have any questions regarding 
this letter or the options it offers, please contact the undersigned.



Respectfully submitted,

Michael Altschul, Senior Vice President & General Counsel

CTIA-The Wireless Association®

1400 16th Street NW, Suite 600

Washington, DC 20036

Maltschul@xxxxxxxx<mailto:Maltschul@xxxxxxxx>

(202) 736-3200



CTIA-The Wireless Association® is an international nonprofit membership 
organization that has represented the wireless communications industry since 
1984.  CTIA-The Wireless Association® offers membership to companies and 
organizations associated with the wireless industry, including wireless 
carriers and their suppliers, as well as providers and manufacturers of 
wireless data services and products.  CTIA advocates on behalf of its 256 
members at all levels of government. The Association coordinates the industry's 
voluntary efforts to provide consumers with a variety of choices and 
information regarding their wireless products and services.  This includes the 
voluntary industry guidelines; programs that promote mobile device recycling 
and reusing; and wireless accessibility for individuals with disabilities.





Attachment: CTIA Comments Opposing Closed Generic gTLDs.pdf
Description: CTIA Comments Opposing Closed Generic gTLDs.pdf



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