Re: ICANN News Alert -- Public Comment: Defensive Applications for New gTLDs

[Eric Brunner-Williams <ebw@xxxxxxxxxxxxxxxxxxxx>]

I offer the following public comment on the subject of Defensive
Applications for New gTLDs. The Corporation's summary, states in part,
that:

> ... parties stated their perception that they will need to submit 
> "defensive" gTLD applications as a means to protect their
> trademarks. ICANN is seeking public comment on the sources of
> this perception and how it can be addressed.

I recall mentioning to Kurt at the Brussels meeting that some in the
Vertical Integration PDP WG were attmepting to get a ".brand" type of
application by gaming the consensus process of that WG. I also recall
that Kurt replied that ".brands will never happen".

Time has passed. The VI PDP WG failed to find consensus. The Board
bounced between zero and complete cross-ownership positions. And the
".brand" application type, for which no policy development ever took
place, has slipped into the DAG.

The unfortunate short and direct answer to the question as to the
sources of the perception is the Board (other than those who'd
publicly commented that they do not consider ".brand" in the public
interest) and Senior Staff (other than Kurt) who've read ICP-1, The
Management of Delegated Domains, section (b), without finding the
plain sense of several words -- trustee, duty, rights, ownership,
responsibilities and service to the community. The relevent text from
ICP-1 follows as an appendix to this comment.

Granted, this reading has been pushed by several in the IPC, but their
advocacy alone cannot explain the PDP-free addition of the .brand type
to the existing "open" or "standard" type, and the "sponsored" or
"community-based" types of applications, for which substantial policy
development took place, both before and especially after the San Juan
meeting. Nor can their advocacy explain the resistance of the Board
and Staff to deferring this untested, and unpolicied application type
until a subsequent round.

I don't see any value in attempting to say which members of the Board
and Staff find an interest, public or private, in the capture of the
Policy Development Process by the anticipatory beneficiaries of a
".brand" application type in the 2012 new gTLD round, but it is worth
pointing out this is a process failure, and unfortunately, the root
cause is not the IPC pursuing Constituency interests, but the process
that found the anticipatory beneficiaries, IPC members included, to
constitute the consensus making body, excluding all other stakeholders
and their statements of record.

Turning from cause to remediation of effect, the Corporation has
several alternatives:

        o It can explicitly bar, as it bars applications by individuals,
applications for brands which fail to meet, at this point in time, a
narrow reading of Section 3, The Administration of Delegated Domains,
subsection 2, of RFC 1591, which is recited without substantive change
in ICP-1;

        o Where existing IP rights (too numerous to mention), when prosecuted
vigorously, fail to protect a brand holder's legitimate interest in a
string, it can allow the objection to convert to an application for
the string in contention, with the condition that like the original
objection(s), no delegation into the IANA root will ever be made for
the so protected string;

        o It can use a contract right it has not exercised since the
redelegation of .ORG from VGRS to PRI, and make gTLD contract renewal
conditional, first, upon intended purpose (see the .BIZ, .PRO, .TRAVEL
and .JOBS contracts for specific failures to maintain the contracted
purpose), and second, upon open competition with bidders not currently
holding market share sufficient to trigger competition policy
restrictions. The certain failure to maintain the fraud upon the
public will reduce fraudulent applications.

Another form of remediation the Corporation could embark upon is to
abandon the one-size-fits-all policy model and price .brand
applications at their anticipated actual policy cost, and lower the
operational requirements (SLA bogies, etc.) associated with real
registries to allow toy registries, the general form of ".brand"
registries.

Not only would this reduce the cost to brand managers who elect to
engage in application, defensive or not, it could allow fees and
operational costs for small registries, not limited to brands, to drop
to the reasonable level the first and second rounds applicants
experienced.

I personally don't think that rational pricing for sponsored and
community-based applicants should be predicated upon capturing the new
gTLD policy development process for the benefit of ".brand"
applicants, but it would be absurd(er) to reduce the fees and
operational burdens for the toy registries of major corporations while
leaving the fees and operational burdens for linguistic and cultural
registries unchanged.

The conflict between dilution-avoidance and the use of mnemonics to
reference resources (host names generally, the DNS in particular) has
been in present since the WIPO-1 period. The conflict between
infringing and non-infringing resolution pre-existed the PPC form of
squatting (originally "exact name", modernly "typo cloud"), but is now
generalized.

The long-term course of action, one the Corporation has been free to
explore at any point since its formation, is legal reform that would
reduce the dilution cost of new label spaces to marks portfolio
managers, and registration policy reform, attempted with success in
the elimination of the AGP abuses, unfortunately not repeated, that
would reduce the infringement cost of label spaces, existing and new,
to marks portfolio managers.

Of course, the Corporation could simply end the conflict between ICP-1
and the proposed-by-the-Corporation practice of making delegations
from the IANA root to fee-paying brand managers by modifying or
abandoning ICP-1. Similarly, the Corporation could simply end the
conflict between the nominal policy development process and the
proposed-by-the-Corporation policy w.r.t. ".brand" applications by
modifying or abandoning transparency and accountability language
("notice and comment" elsewhere).

Written in my personal capacity, with no interest in any ".brand"
application or party.

Eric Brunner-Williams
Ithaca, New York

Appendix.

"(b) TLD Manager Responsibility. TLD managers are trustees for the
delegated domain, and have a duty to serve the community. The
designated manager is the trustee of the TLD for both the nation, in
the case of ccTLDs, and the global Internet community. Concerns about
"rights" and "ownership" of domains are inappropriate. It is
appropriate, however, to be concerned about "responsibilities" and
"service" to the community."