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.