[ga] [IPN] ICANN's proposed restrictions on use of famous names

[Jeff Williams <jwkckid1@ix.netcom.com>]

All assembly members,

  FYI, from Info-Policy:
==================

        [IPN] ICANN's proposed restrictions on use of famous names
   Date:
        Fri, 31 Mar 2000 01:29:00 -0500 (EST)
   From:
        James Love <love@cptech.org>
     To:
        info-policy-notes@venice.essential.org




This is a missive I sent this evening to the ABA antitrust list.
Jamie

------------------
Date: Thu, 30 Mar 2000 14:13:15 -0500
From: James Love <love@cptech.org>
To: ABA Antrtrust List <AT-MEMBERS@ABANET.ORG>
Subject: ICANN's proposed restrictions on use of famous names

This is a question about antitrust actions involving private sector
"self governance" organizations.

ICANN is the Internet Corporation for Assigned Names and Numbers.  It is

a California Non-Profit organization, and is operating under a
memorandum of understanding with the US Department of Commerce that
might be terminated as early as this year (or might not, of course, if
DOC decides to extend it).

ICANN now controls the main root server for the Internet DNS system, the

thing that permits people to use names like www.usdoj.gov or www.ftc.gov

instead of numbers like 149.101.10.32 or 164.62.7.15.

The names are organized in a series of domains.  The top level domain
(TLD) is the last name in the string, such as .com, .org, .gov or .uk.
The next one is the second level domain, or SLD, and so on.  NTIA is the

third level domain in ntia.doc.gov.

Right now there are 244 2 digit country code top level domains (ccTLDs)
like .uk, .fr and .jp, and seven so called "generic" top level domains
(gTLDs), out of the country code space, of which only three are widely
available, .com, .net and .org.  All three of the generally available
gTLDs are manged by NSI, a firm that was recently sold for about $22
billion.

While several country TLDs have tried to compete against NSI for
registering domains, for the most part the action is in .com, a single
TLD.  IMO, this is because ccTLDs like .to, .de, .au etc are not
particularly well known,  intuitive or appealing.  The 2 letter limit
for ccTLDs is a also severe constraint.  (There are a few exceptions, of

course, like the .fm ccTLD which is marketed to fm radio stations, for
example).

For the public, the .com space is very overcrowded.  People are paying
huge sums to buy the rapidly dimminishing remaing regular names on the
.com space, and people apparently pay millions for generic names.  MSNBC

reported today that someone paid $38 million for cool.com.  I don't know

if this is a bona fide offer or not, but there are surly lots of high
priced sales, and many businesses, NGOs and individuals cannot buy the
names they want from .com, .net or .org.

Technically, the TLD space could be huge, perhaps as large as a million
TLDs with today's technology, and who knows how large later.

While anyone can set up a computer to run a TLD registry, very few
people will be able to find it, unless ICANN includes the TLD in the
main root.

Several years ago, the pre-ICANN authority proposed to create 150 new
TLDs, run by 50 new NSI competitors.  The main thing that stopped this
was the (big) trademark lobby.  There are also non-trivial but
resolvable issues concerning the policies associated with new TLDs.

Now ICANN is considering once again to expand the root, first with a 6
to 10 TLD testbest, and once that is done, perhaps a much larger
expansion.  We have called for the addition of thousand of new TLDs.
There is much demand for new TLDs.

Within the proposed new TLD space would be lots of types of new TLDs.
Some would be .com clones, like .inc, .biz, .web, .zone, .store. .firm,
.mall, etc.  Others would be particular to types of activity, such as
.software, .consultant, .sex, .usedcars, .flowers or .drugstore.  And
this is just scratching the surface.  There would also be a variety of
noncommercial TLDs, such as .union, .sucks, or .isnotfair, and lots of
different management styles, some unrestricted and some restricted.  For

example, .union might be controlled by labor unions, or .usbank might be

restricted to FDIC insured bands (an actual proposal by an FDIC
official).

All of this is being held up by a handful of big corporate trademark
lawyers, who have generally opposed adding new commerical TLDs.  These
by and large are firms that already have staked out or taken various
domains like att.com, mattel.com, pepsi.com, etc, and they don't want to

have to fight to protect their trademark name in thousands of new TLDs.

These trademark groups are saying they will block any new TLDs unless
their demands are met.  One current one is to create an open ended list
of "famous" names that would be reserved on new TLDs.  There are various

issues in these negotations, including such items as how many uses of a
"string" (use of a name) would be reserved.  For example, would
cokevpepsi.comparison be blocked?   Would boeing.union be reserved for
boeing?  Would Exxon.sucks be reserved for Exxon?   (There may be some
openess to consider non-commercial exceptions).

There is no legal basis for this type of reservation of famous
trademarks in the US or in nearly any country, and many of the proposed
reservations don't make any sense.  For example, why would ford motor
company be able to reserve ford.flowers, ford.plumbing or even
ford.foundation (not to mention ford.modeling)?  Why would one not have
lotus.cars, lotus.flowers and lotus.software, one ICANN participant
asked?

The trademark lobby is seeking to "own" a string across all TLD space on

the Internet, and of course, you can't blame them for trying.  But they
are seeking this not in a national legislature or through a treaty, but
through ICANN's control of the Internet's root.

The failure to expand the root is now beginning to have serious
anticompetive consequences, because new entrants are disadvantaged, by
not having very much space to find domains.  This is an artificial
regulatory scaricity, but largely by a private sector self regulation
body.

Would there be antitrust grounds to challenge a decision by ICANN to
place restrictions of the use of famous names?

 Jamie

--
James Love, Consumer Project on Technology
v. 1.202.387.8030, fax 1.202.234.5176
love@cptech.org, http://www.cptech.org

Regards,

--
Jeffrey A. Williams
Spokesman INEGroup (Over 95k members strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-447-1894
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208


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