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Username: fnord
Date/Time: Sun, July 2, 2000 at 6:54 PM GMT
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Subject: response to Dr. Mueller

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        Dr. Milton Mueller writes:

Part 3

>Q19: Would the introduction of additional undifferentiated TLDs result in increased inter-TLD confusion among Internet users?

...Furthermore, I reject categorically the premise that DNS should serve as an intuitively accessible catalogue of the Internet.<

A number of obviously knowledgeable individuals have made this point over the years but I have yet to see any technical reason why it should not be an intuitively accessible catalogue. If there is no technical reason not to do so, and as I have yet to see a good non-technical reason not to do so, there are certainly good non-technical reasons for doing so, therefore why not do so?

>Q28: Is the concept of TLD "charters" helpful in promoting the appropriate evolution of the DNS?

...First, a definitional issue. We must distinguish between a "registry policy" and a "charter."<

A very important distinction and for the reasons so well elucidated.

>ICANN's delegation decisions need to be based primarily on technical and operational criteria and not on registry policies.<

However, ICANN has already involved itself in the thorny question of trademarks, which is neither a technical nor operational question. They have chosen one particular UDRP when clearly it could have been constructed differently, have required it to be signed off by all registrars before they can do business, and all registrants before they can register, have chosen WIPO and other panels based on some criteria or another which is neither technical nor operational. Short of them revoking the UDRP and washing their hands of the TM question, they will remain involved.

If that is the case, is it more or less meddlesome for them to allow restricted chartered TLD(s) of the .reg type which are then only open to TM holders? I take your point about ICANN not being able or willing to police this appropriately. However a given industry would itself have a vested interest in policing it. An .airline TLD wouldn't want to get itself gummed up with a million my-A1-airline-this-domain-for-sale.airline registrations (probably by using scripts on day 1).

As the expected roll out of new TLD's is supposedly a 'proof of concept', and as there is a dearth of concepts needing proof as you so accurately point out, would this not be the time to see if a given industry could police its own house? Surely there are industries out there who put aside their competitive instincts when necessary to form cooperative associations, lobby groups, etc. This is not true of all groups but is certainly true of some. Much of the mechanism already exists for them to protect a TLD, to provide a managerial function. If this could prove itself it would provide an impetus for other fractious industries to do likewise if they wish a TLD in a subsequent round. This gatekeeper function need not be onerous, .gov .mil .edu and others seem to manage it without a huge outlay of resources or internet instability or ICANN interference.

Additionally, this could be the edge required for a given registrar/registry to make itself useful. Apply to be one or the other or both for the airline industry (for example), set up a managerial function, tap into USPTO and other databases, provide its own UDRP (which would probably be little used), charge accordingly.

If a particular registry/registrar doesn't do it properly, or if an industry has two (or more) approximately equal but competing 'representational' groups then let them have two (or more) TLD's and let the free market decide who survives. Yes, there can be only one .airline but that is not an insoluble problem, there is .air, airlines (and non-English variants) and at least *those* aren't US trademarkeable at present.

Part 4

>Q34: Has the inventory of useful and available domain names reached an unacceptably low level?

Yes.<

I don't take that as a given. Of course business.com and loans.com are gone, but simply allowing the existence of business.firm and loans.biz is no solution, and would probably wind up being challenged under UDRP, assuming the owners of the first don't register the others which would be the prudent but otherwise wasteful thing to do.

Assuming the good names are taken on .com/net/org they will soon be gone elsewhere and we wind up back at the same point of artificial scarcity. If .com was a proof of concept it proved that a wide open commercial domain is an invitation to having at least 10% of its domains bought just for resale, probably another 10% sitting unused. This would cease with closed commercial domains, not only in the closed domains but probably also in open ones as there would be no perceived market for the latter. It would be like buying commercial property in an area forever reserved for residential purposes.

>Q35: Assuming it is important to increase the inventory of available domain names, should that be done by adding TLDs that are not differentiated from the present ones?

That is for the registry applicants to decide.<

This is a very interesting angle. I can only hope that some applicants will attempt to set themselves off from the pack by applying for .reg type TLD's. Unfortunately, the profit to be made selling open TLD domains to speculators may dwarf any profit made from a .reg. For this reason I think ICANN needs to play a leadership role and actively support one or more industry specific .reg's. Assuming one could be successful we could turn the corner on domains as scarce commodities. If one isn't successful then it is at least a partial disproof of concept and we can go from there.

>Q41: Does the start up of a new TLD pose additional risks to intellectual property rights that warrant additional protections?

No. The legal and UDRP precedents are clear and eliminate the economic basis for cybersquatting.<

I beg to differ. Neither the legal precedents, which have gone both ways, some being overturned on appeal, cases like clue.com (5 years and still unresolved), epix.com (4 years and still unresolved), nor the UDRP precedents, which have been contradictory, even bizarre, are at all clear. It will probably take many more years of litigation to provide definitive caselaw (and that only in the US, what happens when all the parties are elsewhere where there are as yet no precedents?). These disputes could, and given just an increase in open gTLDs will, continue and increase for years.

While clear cases of cybersquatting like cocacola.biz might be easily dealt with (again if all the other parties aren't in the US even that becomes problematic, it is possible to imagine the UDRP ruling in favor of the TM holder and some non-US court then ruling otherwise), what we are seeing is Yahoo.com going after Yoohhoo of Thailand as well as about 100 other sites. There are well over 2000 sites which include *amazon or amazon*.com, to say nothing of those which may or not be 'confusingly' similar without the actual exact string. Under the current UDRP amazon.com could take a significant number of those out of circulation. That does nothing to help the perceived scarcity problem.

US trademark applications this year are up 40%, many of them related to a web presence. If TM holders choose to agressively protect their marks as some now are, that has the potential to remove a huge number of names from circulation in both existing and new TLDs, many of those name holders not being cybersquatters by any stretch of the term.

I own a couple of commercial .com sites. Neither are trademarked though both could be. In one case there are at least 30 sites (some functional, some for sale), and more every month, none of which are trademarked, which could be seen as confusingly similar. I could apply for a trademark, go before the UDRP and conceivably remove 30 sites from circulation (and become their owner, quite the incentive to do so). One could argue that I almost have to do so prior to one of the other sites doing so in which case I risk losing my site. I predict that we will see more and more examples of this happening. Rather than put out continuing brushfires why not provide TM holders with firewalls, closed .reg domains, and no-one gets burned.

Part 5

>Q54: Should ICANN select the TLD labels, should they be proposed by the applicants for new TLD registries, or should they be chosen by a consultative process between the applicants and ICANN?

The TLD strings should be proposed by the applicants.<

In the case of closed .reg TLD's I think ICANN has to show some leadership if there is to be any consistency in future chartered domains.

>Q58: How many new TLDs of each type should be included in the initial introduction?

There should be 10 in the initial introduction. 5 should be open, "generic" TLDs in 5 different languages, 3 should be non-commercial, free speech oriented TLDs in various languages, and 2 should be "technical services" TLDs such as .enum for telephone number mapping or .priv for private networks.<

I obviously disagree with this. If the number is to be 10 then at least 2 or 3 should be of the .reg type for different industries, preferably by different companies who would presumably try, at least at first, dissimilar methods and strategies, and learn from each other as/if and when necessary.

>Q60: Are there any types of TLDs that ICANN should not consider?

Chartered TLDs. Their delegation raises international policy issues and questions about the nature of ICANN that need to be aired and discussed more fully. There is no pressing need for chartered TLDs, so those issues can be resolved later.<

Again I strongly disagree. I submit that intellectual property questions are far more pressing than the need for a number of copies of .com. These questions have been aired and discussed for years with no resolution. Creating chartered domains based on trademark protection will allow for a more informed future discussion, whether they are successful or failures.

>Q70: How should ICANN evaluate the sufficiency of proposed intellectual property protections?

...Certainly ICANN can expect adherence to the UDRP by the registrars in a new TLD.<

They can only do this by:

1. Demanding it in advance of accepting an application, which goes against your otherwise hands off approach (which I agree with), and/or

2. Removing a company's right to be a registry/registrar for not adhering, or using some other form of sanction. It is not impossible to imagine that a company might try such a strategy as it would immediately mean a huge increase in business. To deal with it would require even more invasive ICANN action.

I agree with what is implicit in your statements, that if no-one is willing to apply for a .reg domain this is all moot. I can only hope that ICANN will make it clear that they might look favorably on someone giving it a try. The worst case scenario is that it will fail and become a bit more drek in what is already a very large pile.

I have only addressed the points I have quibbles with. I agree, in most cases very strongly, with all the other points made by Dr. Mueller.

     
     

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