[alac] New TLDs / Question 2
Here are my thoughts on the second set (of five) of ICANN's new TLD questions. ---------- QUESTIONS (Set 2): Which naming conventions should apply? Which strings should be reserved or not designated? (Consider technical issues, strings in use in alternate roots, similarity to other TLD strings, one- and two- character strings, and regional issues: political, cultural, and religious terms, obscenities, and geographical terms.) What method and who should be employed to evaluate the appropriateness of particular strings that may be reserved? What level of protection should be given to trademarks and other asserted rights in strings (e.g., pharmaceutical INNs, country names, current registrants of similar TLD strings, IGOs, geographic indications, personal names)? What methods should be used to protect trademarks or other rights (e.g., a UDRP for TLDs, sunrise period, list of reserved names)? How should conflicts between parties with competing legitimate rights in a name be resolved? Who and what form of organization should vet which strings to designate? FAUSETT DRAFT (Set 2): No process for creating a list of reserved strings for TLDs could create a complete set given the myriad cultural, religious, legal and political reasons that a particular string might not be appropriate for designation as a TLD. The process itself would take significant time, the results would be outdated immediately, and the persons creating the list necessarily could not take account of any unique circumstances presented by a specific future application. Rather than create a list of reserved strings ab initio, ICANN instead should allow applicants to propose the TLD strings of their choice, ranking them in order of preference. The filing of a new TLD application should be followed by a public notice and comment period, which would include the opportunity to challenge any of the strings listed in the application, for any reason. The decision to approve a specific TLD string would require weighing the benefits of the string to the segment of the Internet community designed to be served by the new TLD against the harm that would be done to the challenger and others similarly situated. This will necessarily require a case-by-case analysis. ICANN should ask the GNSO to create a dispute resolution process, to be administered on a cost-recovery basis by an appropriate international body, that would provide recommendations to the Board on whether the choice of TLD string is appropriate in light of the concerns expressed by any challenger. The level of protection given to trademarks and other asserted rights in strings necessarily will depend on the purpose of the TLD and the string selected by the applicant. For example, reservation of pharmaceutical INNs in a health care-oriented TLD would be appropriate, perhaps even necessary, but those pharmaceutical INNs would not need to be reserved in a TLD such as .TRAVEL or .JOBS. Accordingly, the appropriate protection for trademarks and other asserted rights should be decided on a case-by-case basis. The application process, however, should advise applicants to (a) take account of the concerns of putative rights-holders when submitting an application and (b) propose an appropriate reservation policy and dispute resolution procedure that protects those rights. Inadequate protection for rights-holders legitimately affected by a new TLD would be a reason to reject the application. |