RE: [gnso-rn-wg] gTLD Reserved Names Chart

["Ray Fassett" <ray@xxxxxxxxx>]

Mike, the primary issue examined by the gTLD reserved names sub-group had to
do with the potential for user confusion, not brand protection.  As the
chair of this sub-group, my job was to draw out varying views as it relates
to the potential for user confusion if gTLD strings were no longer reserved
at the second level for new gTLD's, including the communication from me that
you have copied below.

 

I think the consistent answer is that if there is a need to prohibit third
level registrations for brand protection because of the potential for user
confusion as a result of no longer reserving gTLD strings at the second
level in new gTLD's (e.g. yahoo.com.shop), then the recommendation states
that this needs to be justified.

 

gTLD Reserved Names Recommendation

Absent justification for user confusion, the recommendation is that gTLD
strings should no longer be reserved from registration for new gTLDs at the
second or when applicable at the third level.  Applicants for new gTLDs
should take into consideration possible abusive or confusing uses of
existing gTLD strings at the second level of their corresponding gTLD, based
on the nature of their gTLD, when developing the startup process for their
gTLD.

 

The gTLD reserved names report also states how such justification may still
be provided: "With its recommendation, the sub-group takes into
consideration that justification for potential user confusion (i.e., the
minority view) as a result of removing the contractual condition to reserve
gTLD strings for new TLD's may surface during one or more public comment
periods."

 

Absent justification for user confusion, the majority recommendation
actually overturns the status quo that requires gTLD strings to be reserved
from registration.  The status quo exists due to a contractual condition vs.
the result of ICANN policy.  As the reports states: "Consultation with ICANN
staff identified that this measure was originally put in place by ICANN in
order to avoid consumer confusion in relation to 'double' TLD addresses."
If a new ICANN policy is to exist (such as to prohibit third level
registrations in gTLD strings registered at the second level), then I
believe this will require the proper venue consistent to ICANN by-laws for
new policy development.

 

I do not believe I have posting rights to the PRO-WG list that you have
copied on this thread.  You may re-post this response there if you like.

 

Thanks,

 

Ray Fassett

 

  _____  

From: Mike Rodenbaugh [mailto:mxr@xxxxxxxxxxxxx] 
Sent: Friday, May 11, 2007 2:01 AM
To: Ray Fassett; Michael D. Palage; gnso-rn-wg@xxxxxxxxx;
gnso-pro-wg@xxxxxxxxx
Subject: RE: [gnso-rn-wg] gTLD Reserved Names Chart

 

Ray, I wanted to follow up on this even though the RN work is now done,
after our exchange at the end of today's call.  I do much appreciate the
point you are making.  These scenarios of course are already happening and
frankly I have rarely if ever tried to deal with them, having so many other
infringement problems.  But expanding the problem into an unlimited number
of new TLDs is definitely not a good idea as it will create an exponential
number of new problems.  I think this dovetails with the point Palage is
making in PRO-WG about prohibiting third level registrations, at least if
the second level name is a TLD name or confusingly similar to a TLD name.
This is something we all need to seriously consider in the newTLD work.
Would you support that?

 

We still have existing legacy problems and there will be more after the next
round of TLDs, I guess the only way to deal with those will be through legal
process, but a policy from ICANN prohibiting such registrations that are
confusingly similar (even if no enforced retroactive effect) might help both
these 'third level registries' and the victims of abusive registrations deal
with them as they arise.  

 

I think this issue should be addressed by the PRO-WG making a
recommendation.

 

Mike Rodenbaugh

Sr. Legal Director

Yahoo! Inc.

 

NOTICE:  This communication is confidential and may be protected by
attorney-client and/or work product privilege.  If you are not the intended
recipient, please notify me by reply, and delete this communication and any
attachments.

  _____  

From: Ray Fassett [mailto:ray@xxxxxxxxx] 
Sent: Friday, May 04, 2007 6:43 AM
To: Mike Rodenbaugh
Subject: RE: [gnso-rn-wg] gTLD Reserved Names Chart

 

verizon.com.phone

yahoo.com.shop

redcross.org.charity

osu.edu.school

randomhouse.com.book

ibm.jobs.corp

 

Should I go on?  Do you have a take down procedure in mind for a com.shop
second level registration in Asia?  Or is your expectation that the registry
will do this 'for you" at the third level?  If so, you may want to re-think
that.  Thoughts?

 

Ray

 

  _____  

From: Mike Rodenbaugh [mailto:mxr@xxxxxxxxxxxxx] 
Sent: Thursday, May 03, 2007 6:04 PM
To: Ray Fassett
Subject: RE: [gnso-rn-wg] gTLD Reserved Names Chart

 

Thx Ray, I do know, but had to miss this part of the call today and just
wanted to give a couple written sentences which I have mentioned verbally
several times in the past.  Of course I am not surprised the RyC wants to
continue the reservation, but have they offered any reasons for doing so?

 

Mike Rodenbaugh

Sr. Legal Director

Yahoo! Inc.

 

NOTICE:  This communication is confidential and may be protected by
attorney-client and/or work product privilege.  If you are not the intended
recipient, please notify me by reply, and delete this communication and any
attachments.

  _____  

From: Ray Fassett [mailto:ray@xxxxxxxxx] 
Sent: Thursday, May 03, 2007 3:00 PM
To: Mike Rodenbaugh
Subject: RE: [gnso-rn-wg] gTLD Reserved Names Chart

 

Thank you for this feedback, Mike.  As you know, the work by the sub-group
is not yet complete.

 

Ray

 

  _____  

From: owner-gnso-rn-wg@xxxxxxxxx [mailto:owner-gnso-rn-wg@xxxxxxxxx] On
Behalf Of Mike Rodenbaugh
Sent: Thursday, May 03, 2007 5:52 PM
To: gnso-rn-wg@xxxxxxxxx
Subject: RE: [gnso-rn-wg] gTLD Reserved Names Chart

 

I very much doubt users would be confused to thinking, for example, that
jobs.travel must be affiliated with the .jobs registry or that org.jobs must
be affiliated with the .org registry.  I also think it is an unfair
advantage for existing TLD registries to reserve their name at the second
level in every new TLD, while new TLD operators can have no such protection
in existing TLDs.  Indeed that is the case now with all the 'newer' TLD
strings registered in .com, net and org.  In the world of 1000 TLDs that
everyone envisions, this reservation requirement makes no sense and it has
not been justified in any way by anyone to date.  I think therefore that the
WG should recommend it be eliminated, and existing domains reserved on this
basis should be released.  

 

If this is not the majority opinion, then I would like to make this a
minority statement.

 

Thanks.

 

Mike Rodenbaugh

 

  _____  

From: owner-gnso-rn-wg@xxxxxxxxx [mailto:owner-gnso-rn-wg@xxxxxxxxx] On
Behalf Of Ray Fassett
Sent: Thursday, May 03, 2007 10:05 AM
To: 'Tim Ruiz'
Cc: gnso-rn-wg@xxxxxxxxx
Subject: RE: [gnso-rn-wg] gTLD Reserved Names Chart

 

These are good questions, Tim.  Let me try to respond prior to our call.
First, I think it is important to appreciate that the reservation of gTLD
strings is a contractual condition and not a policy.  PDP 05 is a policy
setting process.  If the sub-group is to make a recommendation (in theory to
PDP 05) to create "new policy" that is to change the status quo for gTLD
reserved names, then there needs to be evidence to support its doing so
(strong support could work in lieu of empirical evidence).  Second, the
reservation of gTLD strings is an existing contractual condition, which is
different than your parallel examples of the IP community and ISP's (or
registrar names).  If an existing contractual condition is going to be
changed as a recommendation from the sub-group's work, then there is a
burden for which to do so (more on this below).  Conversely, if a new
reserved category is desired to be created (such as for IP or ISP interests
or registrar names), then there is a burden to achieve for which to do so
(for example, see Controversial Names category).  

 

The initial work of the gTLD reserved names category resulted in the need
for a 30 day extension for the reason that conflicting opinions resulted
from the initial work.  As the chair of this subgroup, I examined the
initial findings and took the approach of:  Can gTLD strings be unreserved
for registration? vs. should gTLD strings continue to be reserved from
registration?  From the initial work, including the conflicting opinions,
there appeared reasonably strong support to the idea that gTLD strings can
be unreserved as matter of contract.  There really has not been a dissenting
opinion to this notion.

 

Comments obtained from within the RyC members clearly favor the preservation
of this reserved names category.  The sub group must accept this as expert
advice, objectively while also examining the motivations for such advice.
Some individual members of the registrar constituency offered the same
opinion as RyC members, and for the same reasons i.e. potential user
confusion.  Is there evidence of user confusion?  I don't know of a study
that indicates that there is, just as there is not a study that indicates
that there is not.  Objectively, the burden falls on the latter, not the
former, because the reservation of gTLD names is an existing condition, not
one looking to be created or added new.  While opinions may arise that all
gTLD strings should simply be unreserved for new TLD's, the burden was not
achieved for this recommendation by the sub-group.  What I believe has been
achieved is that gTLD names can be unreserved.  Given this is true, we had
to look at the reason - or place - ICANN was taking to restrict - by
contract - the registration of gTLD strings.  Certainly a technical security
and stability issue would suffice.  Examining this question found that a
recent opinion by the RSTEP stated that there is not, in its view, a
security and stability issue to TLD.TLD.  Objectively then, why is ICANN in
the middle of this reserved names category as a contractual condition and,
more importantly, should ICANN continue to be for new TLD's?  Clearly
evidence indicates ICANN should not be.  With this said, ICANN Core Value 3
is applicable:   

 

To the extent feasible and appropriate, delegating coordination functions to
or recognizing the policy role of other responsible entities that reflect
the interests of affected parties.

 

My own examination of the findings led me to 2 clear, objective conclusions:
1) There is strong support that gTLD strings can be unreserved and 2) ICANN
should not be contractually binding itself as the party to require approval
from.  The recommendation accomplishes these 2 conclusions: 1) enables the
release of gTLD strings for registration as a matter of contract (which
today is not the case) and 2) enables release in a manner that does not
require ICANN's approval (as it does today).

 

While I have shared the above thinking with the 2 members of this sub-group
(Edmon Chung and Patrick Jones), we are still in discussion ourselves and
what is stated above is in my own words.  I am glad you asked the questions
as discussion and dialogue is what this is about.

 

Ray

 

  _____  

From: Tim Ruiz [mailto:tim@xxxxxxxxxxx] 
Sent: Thursday, May 03, 2007 11:29 AM
To: Ray Fassett
Cc: gnso-rn-wg@xxxxxxxxx
Subject: RE: [gnso-rn-wg] gTLD Reserved Names Chart

 

If this is going to be the recommendation, then I would like to add to that
the business names of then existing Accredited Registrars. And I am sure
that the IP community would then like to add the well known names of other
Internet services providers (search engines, ISPs, etc., etc.).

 

I cannot imagine a registry giving a competitor permission to register the
equivalent of its gTLD string at the second level. In fact, I think
investigation of antitrust and other anti-competitive laws and regulations
should be done before we consdier making such a recommendation.

 

What is the is actual evidence of potential harm to justify this
recommendation, or the existing policy regarding these reservations? What is
the justification to continue to expand the existing imbalance regarding the
registrations of such names? All this does is make an ever growing number of
valuable and useful generic strings unavailable to the general public, and
assumes bad intentions on the part of those who may like to use them.

 


Tim 

 

-------- Original Message --------
Subject: [gnso-rn-wg] gTLD Reserved Names Chart
From: "Ray Fassett" <ray@xxxxxxxxx>
Date: Wed, May 02, 2007 7:47 pm
To: <gnso-rn-wg@xxxxxxxxx>

Attached find the gTLD Reserved Names Chart outlining the sub group
recommendation for discussion on Thursday.

 

Ray Fassett