Public comment on GNSO new TLDs Committee Part B: Final Report Aug 2007

[carlb@xxxxxxxxxxxx]

> 1. Do you have any general comments about the package of principles,
> proposed policy recommendations and implementation guidelines?

The process does need to be split into two parts; the question of whether
(in principle) some particular string needs to be created should be
addressed before prospective registry operators pay many thousands of
dollars to make their applications to ask to be the ones to operate those
TLD's.

The cost of an application to operate a new TLD is onerous and can be
difficult to justify without some advance knowledge that the string itself
is desired by ICANN and the larger Internet community. To mix the question
of whether to create a string with the question of the suitability of an
individual applicant to operate a registry puts applicants in the
potentially-awkward position of having wasted thousands of dollars trying
to prove to ICANN that they have technical competence to run ".xxx" - all
for naught once the string itself is rejected as undesirable.

> 2. Do you have any comments on the selection criteria for new top-level
> domains (Recommendations 2-9, 20)?

With respect to #3, "The process for introducing new gTLDs must make
proper allowance for prior third party rights, in particular trademark
rights as well as rights in the names and acronyms of inter-governmental
organizations (IGOs)."

This needs to be defined in such a way as to reflect that the use and
misuse of registered trademarks are only part of a larger problem.
Trademark registration is inherently limited in its purpose; it applies
specifically to use in commerce, and then only in specified fields of
business and specific countries.

Focusing on registered trademarks only ignores a larger issue; that of the
use of names deliberately similar to any existing registrant, even if the
name is outside the scope of trademark registration. This would include
names of non-commercial entities and individual projects undertaken by
these entities, individuals and small businesses which hold only a
registered company name giving the ability to cash cheques and open bank
accounts under that name, but which is not a registered trademark.

That rights to the distinctive use of trademarks can be established, under
principles of common law, solely through usage is also a factor to be
considered.

> 3. Do you have any comments on contractual conditions for new TLD
> operators (Recommendations 10, 14-19)?

In selecting or accrediting both registry and registrar operators, ICANN
appears to be focused solely on technical and financial considerations.

These factors are only part of the puzzle. We have a situation where
accredited registrars are routinely manipulating the system against the
public interest for their commercial gain. Registrars should not be
creating or allowing duplication of registrations, in such a way that
thousands of duplicate domains are created to point to the same content on
the same servers - usually one page of pay-per-click linkspam parked on
each name. This is tying up millions of names which otherwise could go to
new registrants. Registrars should not be creating multiple shell
companies or acting in collusion with other accredited registrars in order
to get unfairly greater access to expiring domain names. As an unfair
competitive tactic, this stacks the odds against smaller registrars; there
is also the issue that most of these registrations are being made solely
to capture traffic intended for the previous registrant and direct it to
multiple and most often duplicate "parked" advertisement sites. In some
cases, domains are registered primarily to list them for sale at
exorbitant prices in so-called "aftermarket" operations.

Both the registry and ICANN should have the responsibility and the
contractual ability to revoke duplicate registrations which point
thousands of names to the same content (or lack thereof) on the same
servers.

The extra registrations, and the extra burden on the systems created by
multiple sockpuppet "drop registrars" all attempting to appropriate the
same names do adversely affect the operation of the system as a whole.
ICANN's list of accredited registrars is filled with duplicate entities
and with companies which quite simply are not in the business of being
retail domain providers.

> 4. Do you have any further comments about any other aspect of the
> introduction of new top-level domains?

I'm a little concerned about the idea of governments being given the final
word as to what is acceptable in terms of using geographic or cultural
identifiers. The decision [for instance] on whether ".kurd" should be
created should be based on the existence (or non-existence) of an online
user community which would find the domain useful - not on whether the
powers in control in Baghdad or in Turkey that day choose to respect or
disrespect that particular (or any particular) minority.