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