Comments to ICANN: GAC Beijing Communique

["Lipton, Jacqueline D" <jdlipton@xxxxxxxxxxxxxx>]

May 7, 2013

Comments on GAC Beijing Communiqué Issued on April 11, 2013

I write in response to ICANN’s call for public comments on the GAC’s Beijing 
Communiqué issued on April 11, 2013 (Beijing Communiqué) with specific 
reference to Section IV and Annexes I and II.

In particular, the GAC has advised the Board:

a.      Not to proceed beyond Initial Evaluation with certain strings including 
.amazon, .patagonia, .date, .spa, .wine, .vin, and .yun (clause IV.1.c.i);
b.      To implement new general Safeguards for all gTLDs (Annex I);
c.      To implement new specific Safeguards for particular categories of gTLDs 
identified by the GAC (Annex I);
d.      To implement restricted registration policies for certain categories of 
gTLDs (Annex I); and,
e.      To implement a “public interest goal” requirement with respect to 
exclusive registry access for generic terms (Annex I).

I am a professor of law whose expertise resides in the field of law and digital 
technology, with particular focus on trademarks, free speech, and Internet 
governance.  I am the author of “Internet Domain Names, Trademarks, and Free 
Speech” (Edward Elgar, 2010) as well as more than forty law review articles 
dealing with Internet domain name disputes and Internet governance more 
generally.  I also co-author the leading American Internet law casebook, 
“Cyberspace Law:  Cases and Materials” (2 ed, 2005, and 3 ed, 2010) (with R. 
Ku).  I hold Ph.D.s from both Cambridge University and Griffith University, 
both in the fields of regulating digital technology.  My teaching is focused in 
the areas of International Intellectual Property, International Business 
Transactions, Trademark and Unfair Competition, and Internet Law.

In my view, ICANN should not adopt any of the recommendations raised in the 
Beijing Communiqué.  These recommendations have been made too late in a process 
that is already underway, and under which large sums of money have been 
invested by applicants in reliance on previously released ICANN guidelines.  
Additionally, many applicants have made plans for innovative business models in 
new domain spaces that would be severely restricted, if not effectively 
prohibited, if the GAC’s proposals were implemented.

Rules for granting and managing new gTLDs should not be changed at this point 
in the system’s development.  The current procedures already contain safeguards 
with respect to the issues raised in the Beijing Communiqué.  For example, 
governments – and others – are entitled to object to the grant of applications 
for particular gTLDs on previously articulated grounds.  Under the Beijing 
Communiqué, the GAC seeks to add an additional and unnecessary layer of rules 
that serves no clear purpose over and above safeguards currently in place, and 
that may chill online innovation.  Many of the GAC’s suggestions are also 
framed in terms that are too vague to be implemented in practice in a 
consistent and meaningful way, despite apparently laudable policy goals.  I 
have detailed some specific concerns below.  

1.      In the Beijing Communiqué, the GAC tends to rely on broad, undefined 
terms as criteria to impose restrictive conditions on applications for, or 
administration of, new gTLDs.  An obvious example is the reference in Annex I 
to implementing new gTLDs “in a manner that is fully respectful of human rights 
and fundamental freedoms”.  While this is clearly a laudable aspirational goal, 
any international human rights lawyer or advocate can attest to the difficulty 
of defining such terms in a harmonized manner at the global level.  Even the 
most basic of human rights – such as free speech – connotes different things in 
different jurisdictions.  For example, while the United States has a powerful 
First Amendment jurisprudence, Australia has no express constitutional 
guarantee of free speech.  There is no way to enshrine a meaningful concept of 
human rights or fundamental freedoms in a uniform and workable set of rules for 
domain names.  

Another example of a tendency to rely on vague and undefined language in the 
Beijing Communiqué arises with respect to the notion that registries be 
required to operate “in an open manner consistent with general principles of 
openness and non-discrimination”.  Again, these are laudable aspirational goals 
that are impossible to reduce to concrete and workable rules in practice.  They 
should not be imposed on the new domain name system at this point in its 
development, at least not in the terms suggested in the Beijing Communiqué.  
Their application would be fraught with too much practical difficulty and would 
tend to have a chilling effect on online innovation.

2.      The GAC suggests in the Beijing Communiqué that exclusive registry 
access for generic terms should serve a public interest goal.  As noted in my 
comments on the “closed generic” issue in March of this year, “generic” is not 
a term that can be meaningfully defined in the context of Internet domain 
names.  Genericness always relies on context.  A term that is generic in one 
context may well be proprietary in another.  It is impossible to distill a 
general rule to apply to all new gTLD registries to identify terms that should, 
as a general rule, be subject to a “public interest goal” requirement.  For 
example, depending on the context, “Delta” is a proprietary trademark (for 
airlines, hardware fixtures etc.) as well as a mathematical symbol, a Greek 
letter, and a word in the English language.  

Even if it were possible to create a meaningful definition of “generic” in the 
context of gTLDs, it would be equally problematic to define the concept of a 
“public interest goal”.  Many of the difficulties in creating such a definition 
have already been identified in Annex II of the Beijing Communiqué itself.

3.      The Beijing Communiqué also fails to provide a clear rubric for the 
treatment of specific strings it has identified as requiring further 
consideration in Clause IV.1.c.i.  The GAC has suggested that applications for 
a series of strings including several valuable trademarked terms (such as 
.amazon, .spa, and .patagonia) should not proceed past Initial Evaluation.  
Several business entities have expended significant resources in developing 
these brands and applying for the corresponding gTLDs in good faith under 
existing guidelines.  It would be unfair to effectively veto their efforts at 
this stage when no specific harm has been articulated by the GAC with respect 
to the possibility of granting the applications.  While the Beijing Communiqué 
may reflect genuine concerns about conflicts between a trademark and another 
interest in a new gTLD space, there are procedures in place – including under 
national laws – to deal with such challenges.  There is no justification for 
removing applications for these gTLDs from consideration at this point in 
ICANN’s process.

4.      In Annex I of the Beijing Communiqué , the GAC seeks to impose heavy 
administrative obligations and attendant costs on registries of new gTLDs in 
terms of its proposed Safeguards.  These include monitoring and documentation 
requirements that have not been imposed on domain name registries in existing 
domain spaces.  The imposition of such obligations at this point in the 
development of the new system would likely go a long way toward chilling 
innovation online by imposing significant financial and administrative burdens 
on those who would otherwise provide commercially valuable spaces for 
innovation.

5.      Annex I of the Beijing Communiqué requires registry operators and 
registrars to “respect all substantive and procedural laws under the applicable 
jurisdictions”.  It is not immediately clear that this needs to be implemented 
as a particular new safeguard within the system, or indeed that it can be 
implemented by ICANN meaningfully in any event.  It goes without saying that 
registry operators and registrars are subject to national laws, as well as to 
provisions set out in the new gTLD Registry Agreement requiring compliance with 
national laws.  As with existing gTLD spaces, domestic courts and legislatures 
will govern acceptable online conduct in new gTLD spaces in terms of compliance 
with national law.  There is no need for any new preemptive regulation by 
ICANN. 

6.      In Annex I, the GAC attempts to create a list of strings linked to 
regulated or professional sectors that merit special consideration, along with 
the imposition of additional administrative safeguards and associated burdens 
on relevant registries. The Beijing Communiqué further states that this list of 
strings is “non-exhaustive” which seems a little problematic in potentially 
creating uncertainty in practice.  Under this approach, the GAC appears to be 
attempting to create a general veto power or at least exercise an unjustifiable 
level of control over any new gTLD application without having to go through the 
already established process for objecting to specific gTLD applications.  At 
best, this approach seems like an attempt to pre-emptively regulate something 
that doesn’t clearly need regulation outside the procedures already in place. 
At worst, this approach will have a significant chilling effect on innovation 
in new gTLD spaces and will lead to wasted resources.  If the risks associated 
with applying for, or managing, new gTLD registries that may be regarded as 
falling within the categories identified by the GAC become too high, potential 
registrants may be deterred from developing strategies for online innovation in 
those spaces.  As a result, gTLDs that may otherwise have been applied for and 
utilized for socially or commercially useful purposes will simply become wasted 
resources.

In sum, the new gTLD spaces should be allowed to develop as the existing gTLD 
spaces have grown, subject to national laws, and free from the implementation 
of ex ante rules developed in a context of uncertainty about how registries, 
registrars, and consumers will use the new system in practice.  In other words, 
the concerns raised in the Beijing Communiqué seem almost like a solution in 
search of a problem.  The gTLD expansion should be given the opportunity to 
develop organically so that new registries can innovate subject to the 
constraints of national laws and the objection procedures set out in existing 
ICANN guidelines.

Again, I would urge ICANN to maintain consistency with its stated procedures 
for applications for new gTLDs and not to impose a complicated and unnecessary 
new system for imposing additional safeguards the need for which has not been 
clearly articulated by the GAC.  There has been adequate time during the 
development of the system to consider the issues raised in the Beijing 
Communiqué.  Procedures have already been implemented to deal with those 
concerns, notably the ability of governments and others to object to specific 
gTLD applications.  It would be inappropriate now to change the rules.  While 
the GAC’s motives are laudable, the execution of the suggestions made in the 
Beijing Communiqué would be unworkable and is unnecessary at this point in the 
development of the system.  

Thank you for the opportunity to comment on this issue.  If you have any 
queries in relation to the above, my contact details are below.
Sincerely,

Jacqueline D. Lipton, Ph.D.
Baker Botts Professor of Law
Co-Director, Institute for Intellectual Property and Information Law
University of Houston Law Center