Short domains don't belong to IGOs, especially ones already registered

[George Kirikos <gkirikos@xxxxxxxxx>]

By: George Kirikos
Company: Leap of Faith Financial Services Inc.
Website: http://www.leap.com/
Date: September 20, 2013

Topic: Draft Final Report on Protection of IGO and INGO Identifiers in All gTLDs

Thank you for the opportunity to comment on this draft report. It's disturbing 
that this workgroup is even *considering* making enormous and profound changes 
to the rights of existing registrants of short domains (acronyms, etc.) in 
existing gTLDs. .com has been in existence since 1985, nearly 30 years. The 
UDRP has existed since 1999. If there had been substantial abuse of those 
domains, there was ample time for IGOs to assert their rights via existing 
processes and laws.


Suppose the US government passed a law saying that if you live in Manhattan (a 
desirable location), that you may not sell/transfer your land/property, but 
instead can only transfer it to one of its "insiders" (e.g. a government agency 
that covets the land). What would happen? There'd be rioting in the streets at 
such a communist takeover of the assets. (such a "transfer" might not be 
immediate, but human beings eventually die, etc., so such transfers are 
inevitable). It would be illegal. Essentially, that is what some voices in this 
working group are proposing, that some "preferred group" have an extraordinary 
power, not granted by legitimate law, to obtain another party's valuable asset, 
or restrict its ability to be transferred.  Even bringing up the *potential* 
for such a loss would cause a *decrease* in website and internet development, 
due to the inherent uncertainty created. It's like investing in Russia or 
Venezuela, where one has to constantly
 look over one's shoulder to make sure the government won't expropriate one's 
assets. It would chill the entire marketplace and internet economy.

Folks transfer domain names for many legitimate reasons, just like folks 
transfer land or housing for many legitimate reasons. Deaths, retirement, a 
change in business plans, divorces, etc. are just a few of the reasons people 
sell. Perhaps a registrant builds a successful website, and decides to sell 
that website (along with the domain name) to a larger company. Or perhaps a 
company spins off a division, and transfers one or more domains to that 
division (e.g. News Corp split into two companies recently, with FOX.com being 
transferred to one of them). Without the ability to transfer the domain name, 
their entire investment would be lost. No one lives forever, not even 
companies, and so transfers are inevitable.

As long as such transfers do not violate the law, ICANN should keep its nose 
out of such matters and not interfere, especially when there are no good policy 
reasons to do so (i.e. there needs to be supporting economic and statistical 
data in the event of such profound policy changes, as per the Affirmation of 
Commitments).

There are only 676 2-letter .com domains, and ALL are of course registered. 
There are 17,576 3-letter .com domains (out of over 110 million dot coms), and 
of course ALL of these short domains are also registered. They are all 
registered because they have *intrinsic value* that is entirely unrelated to 
some coincidental use by some random IGOs. For example, FaceBook paid $8.5 
million for their 2-letter FB.com domain name:

http://blogs.reuters.com/mediafile/2011/01/11/farm-bureau-finds-wealthy-friend-in-facebook/


Under some socialist "logic", the American Farm Bureau (prior owners of the 
FB.com domain name) should have simply handed over the FB.com domain to an IGO, 
rather than realize the maximum value of their asset in the marketplace. The 
"greater good" (i.e. that of some obscure IGO) *demands* it, in the eyes of 
some of these extremists. That view should be rejected and opposed. 

Clearly, under the reasoning of some of the minority participants in this 
working group, highly valued domains such as these that are owned by legitimate 
enterprises would be under threat, and it is shocking that this working group 
would even seriously entertain the notion. First they come for the short 
domains, and then they'll come for *your* domain....

Existing registrants might not even be able to transfer their domains to a 
good-faith purchaser, if some minority positions are accepted, thereby 
devaluing their property (as discussed above). For instance, one IGO on the 
list at: 

http://csonet.org/content/documents/E2011INF4.pdf

is "Socialist International" (picked on purpose, obviously). Assuming their 
acronym is "SI", should they have rights over SI.com, owned by Sports 
Illustrated? That would be the "socialist utopia" of some communists, to take 
private assets for the "greater good" (the "greater good" being their own IGO's 
benefit). Or should the Parliamentarians for Global Action (PGA) have any 
rights over the PGA.com domain name owned by the golfing association? Perhaps 
one day Sports Illustrated might want to legitimately sell their domain to 
another entity (e.g. even Microsoft sold their DO.com to SalesForce for an 
undisclosed price, and Elsevier sold their BH.com to Bell Helicopter, once 
again at an undisclosed price), or want to spin off into a separate 
corporation. Such transfers should not be interfered with by any policy change, 
as it would effectively be stealing from existing registrants (i.e. perhaps not 
immediately, but it would affect their future rights to
 maximize the realization of their assets). It would be an intrusion into the 
market economy, in order to impose benefits upon a very select few (i.e. IGOs 
whose names are not being abused). It would be destructive and have widespread 
and unintended consequences.

I find it disturbing that the NCUC would dare to propose (in a minority view) 
on pages 42-43:

"Our minority view extends to what happens when the registrant of such a 
reserved names wishes to sell or otherwise transfer the name to another 
registrant. Allowing such a transfer goes against the nature of the reserved 
names list and opens an avenue for abuse.

Our recommendation is that all names added to the reserved names list be 
blocked from sale/transfer to a new registrant at least until such
time as a PDP on reserved names has considered the issue in the light of their 
possible changes to the nature of reserved names."


That's one step short of immediate expropriation, and yet would still devalue 
the holdings of tens of thousands of legitimate registrations. Indeed, it would 
not just affect those names directly, it would affect development on ALL domain 
names, if ICANN could rewrite existing rules to create uncertainty about the 
ability to transfer domain names. It is very self-serving for the NCUC, since 
it would essentially give a transfer of wealth from existing registrants to 
these "non-commercial" users represented by the NCUC. The secondary market is a 
signficant component of the domain name industry, and it would put a chill on 
the entire industry if *any* entity could use the ICANN policymaking process to 
rewrite history and essentially steal domain names (or expropriate their future 
value by affecting transfer rights). The NCUC should promote dot-NGO or dot-IGO 
or whatever, rather than propose the devaluation of the assets of existing 
registrants, by casting a
 shadow over their future ability to be transferred at the highest price (i.e. 
valuation is determined by highest and best use, which in nearly all cases has 
absolutely nothing to do with IGOs sharing the same acronym).

http://en.wikipedia.org/wiki/Highest_and_best_use 

Indeed, IGOs might be incentivized to strategically change their names in order 
to purposely conflict with the most desirable acronyms and words, so they can 
profit from the ability to gain a "free" right to those elite domain names.

According to Wikipedia, "Held and McGrew (2002) counted more than 
6,743 [7] IGOs worldwide, and this number continues to rise." 

http://en.wikipedia.org/wiki/Intergovernmental_organization

So, we are not talking about a small number of very famous IGOs, but thousands 
of obscure groups that randomly have acronyms that should be available to be 
used by anyone (as long as it's not violating 3rd party rights). Certainly 
nothing in law gives these IGOs monopolies over common words and short domains. 
If each of those IGOs had a 2 or 3 letter acronym, we're talking about a huge 
overlap between those and the existing registrations of the comparable .com 
domains.

It's disturbing that registries and registrars seek an indemnification in the 
event that domains are stolen from current registrants, see page 34:

"Where policy changes to recover protected identifiers of 
registered second-level names within an existing gTLD deviate from 
current policy, registry & registrar indemnification should be considered."


That talk of indemnification clearly means some are already worried about the 
legal challenges that would take place at such a drastic policy change. The 
word "recover" should be read as "stolen", since that's essentially what is 
being discussed by some members of this working group. 

The Affirmation of Commitments makes it clear that a cost/benefit analysis must 
be made before any policy changes are made. Affecting existing domains would 
impose an enormous cost (not just to directly affected registrants, but 
indirectly to all registrants, due to the threat of future expropriation and 
expansions on the targets of those facing restrictions on transfers), and the 
benefits would be minimal, given that there is little actual abuse of IGO names 
at present.

IGOs pay market prices for their employee salaries. IGOs pay for their office 
supplies, office space, electricity, heating, gasoline, and other expenses. 
They should be expected to pay to obtain any valuable asset that has multiple 
competing uses. Short, desirable acronym domain names are just such assets, 
that have *multiple* competing uses. IGOs should have no superior claim to them 
than any other entity. The first-come, first-served allocation rule should not 
be diluted by attempting to favour IGOs at the expense of everyone else. 
Property rights should not be weakend by attempting to limit the ability of 
registrants to transfer their assets to other legitimate registrants.

In conclusion, I recommend that there be no policy changes that would affect 
the rights of existing domain names. Even for new gTLDs (which I'm not a fan 
of), such protections are not warranted. The most famous marks of IGOs already 
have strong protection in law, and can be asserted via existing policies like 
the UDRP. Any changes, at most, should only affect freshly registered domain 
names (e.g. in new gTLDs), so that registrants were aware of the policy 
*before* they registered such names.

If there are to be any policy changes, they should be designed in such a way to 
subsidize UDRP costs for qualified IGOs, rather than maintaining reserve lists. 
That can address real abuse in a cost-effective manner. Where no significant 
abuse occurs, ICANN should not be considering policy changes.

Sincerely,

George Kirikos
http://www.leap.com/