RE: [ga] Dotcom Policy issue in the proposed new Verisign contract

["Joanna Lane" <jo-uk@rcn.com>]

Title:

Anybody who has failed to notice that the word  "Dotcom" has taken on a life of its own, and that increasingly, it's usage has fallen outside the sphere of influence of a mere technical co-ordinating body, or even a Government Advisory Committee, is frankly, asleep, so I have no doubt that everybody here fully appreciates the bigger picture, meaning the relationship between the .com TLD and the word "Dotcom".

They are not the same thing, but inextricably linked and a powerful combination. Thus, the "Dotcom/ .com" combination has added value above and beyond any other TLD now existing, although it cannot be denied that other examples may present themselves in the future. This is therefore a matter of domain name policy that seems to have escaped the notice of those negotiating the new TLD contract with Verisign Contract, or did they?

As a member of the GA, I am therefore suggesting that the new contract demonstrates a significant development in domain name policy that  the BoD now proposes to effect without proper consultation with DNSO, in fact,  ignoring the "Dotcom" Vs. ".com" issue altogether. IANAL (I am not a lawyer), but I suggest this could place ICANN in clear breach of Article VI, Section 2 of ICANN Bylaws.

FACT:  "Dotcom" has entered the vernacular. The same cannot be said of any other TLD

CONCERNS of THE DNSO

1. Should DNSO be tasked by the BoD with developing a policy in relation to this issue?
2. Should the DNSO's task include review of common usage of the word "Dotcom" to clarify meaning?
3. Is ICANN granting rights to the word "Dotcom" as part of the proposed new contract or are these, if any exist, remaining status quo?
4. Should DNSO review Verisign's rights to "Dotcom" in relation to its acquisition of ".com", (and possible variations), and in relation to those who are currently using the words "Dotcom TLD" and "Dotcom" (and variation) for purposes other than to promote Verisign's .com TLD Registry/ Registrar?
5. Does ICANN need to form a policy to secure words that have entered the vernacular, ensuring these cannot be captured by a single for-profit entity by virtue of its contracts with such entities?
   
6. Could Verisign obtain the TM for "Dotcom" on the basis of the new .com TLD Registry/ Registrar contract , then prohibit it's use by others on the basis of passing off ?
7. Should it say in the new Verisign contract that ICANN is, or is not, expressly excluding any possible rights to exploit the word "Dotcom"?
8. How does the "Dotcom" Vs ".com" fit with current terms of reference of the UDRP ?
   
9. Should special consideration have been given to the unique value of .com in the new contract ?
10. If the new contract goes ahead, what possible implications could there be for Verisign and the BoD if this issue is not addressed by DNSO?

BACKGROUND
The word "Dotcom" was born of the internet in relation to a singleTLD, the very same TLD that is now the subject of the acquisition by Verisign. This would indicate ownership of "Dotcom" by those who rely on trading the .com TLD through Registry/ Registrar contracts with ICANN. However, over time, this particular word has become a native of the language of the Internet and is now in common usage throughout the world with reference to more than the single TLD from which it originated.

 

It's usage is so widespread that largest $multi-billion international marketing machine could not persuade the world to use another word in its place.

This is largely because Worldwide, the general public perceives "the internet" as synonymous with "the dotcom world", regardless of whether or not they are connected to it, or whether or not the range of TLDs they may actually be using on a day to basis are .com TLDs. Nobody talks about the "Dotnet world", or the "Dotorg world", "Dot-co-dot-uk world", or "Dot-com-dot-au world". Equally, they don't talk about "Dotbiz", rather it is known as the  "Dotcom business". The word is published prolifically and at every imprint, it is not taken to mean NSI/ Versign's .com TLD business and should not be so in the future.

 

ICANN's NEED FOR A POLICY FOR DOTCOM

 

Neither ICANN, nor any other entity, can put the Dotcom genie back in the lamp. Neither is it within ICANN's power or remit to change common language. Clearly, Dotcom Vs. .com is a special case, Nevertheless, DNSO must establish clearly to its own satisfaction that ICANN would not be facilitating attempts of others to capture common words by virtue of of it's new TLD contracts.

 

ICANN is on the brink of possibly signing away interests of internet stakeholders without consideration to this aspect, as if the names of the next 100million TLDs could take the place of Dotcom. There is no evidence for such an assumption. 

 

While it may be forgiven that this issue was not foreseen by NSI/ ICANN when formulating the existing agreement, it cannot have escaped the notice of the current BoD and ICANN staff. Why has it been ignored?

Our duty today is to ensure that those who will be granted control of dot.com, treat it as their most precious resource and in exercising our influence over ICANN about who that will be, and how it will be accomplished, we must advocate prudence in policy making decisions.

 

History may view a decision to give the .com TLD to a single for-profit entity, without consideration to the "Dotcom" issue, as a reckless act. It is my personal belief that every other issue in the Verisign contract is secondary to this one.

 

Sincerely,

Joanna






<snip/>
Under Article VI, Section 2 of the ICANN Bylaws, the Supporting Organizations are given primary authority for development of "substantive policies" relating to activities within their individual scope of responsibility. In other words, the Domain Names Supporting Organization is tasked with development of domain name registration and operational policies. Given that fundamental delegation of authority, any policy action by the Board against or without the DNSO's input might well be in violation of the Bylaws. http://www.lextext.com/icann/index.html
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