Address comments to: comments-gtlds@dnso.org
COMMENT TO REPORT OF WORKING GROUP C OF THE DOMAIN NAME SUPPORTING ORGANIZATION OF ICANN
Rob Hassett, Attorney, Atlanta, GeorgiaI believe that decisions relating to the adding of more generic top level domain names should be governed by the following considerations:
(1) Avoiding interference with the overall operation of the Internet;
(2) Reducing artificial barriers to entry for new online businesses and organizations;
(3) Effective limitations on the abuse of famous and well-known marks in the use of domain names; and
(4) Promotion of fairness and justice in the addition and allocation of top level domain names.
Technical Issues
I favor beginning with 10 new top level domain names to allow for the working out of possible technical problems coupled with a fixed schedule for permitting the adding of an unlimited number.
Barriers to Entry
The restrictions on the number of generic top level domain names has created unacceptable artificially induced valuations in second level domain names in the only space designated for commercial use -- .com. Because of the delay in adding other domain names designated for commercial use, the .com space has continued to become more entrenched as the commercial gTLD of choice. Of course commercial sites are free to use .net and .org, but neither has been touted for that purpose and are therefore not desired for commercial use. I feel that the longer the delay in adding new gTLD’s earmarked for commercial use, the more entrenched .com will become and so I believe the sooner additional gTLD’s are added, the better. There is something to be said for the argument that adding a few commercially oriented gTLD’s may be more effective in lessening the value of .com than adding many because of the "noise" effect. Nevertheless, on balance, I believe that in the long run competition will be most effectively promoted by not limiting the number of new gTLD’s. Differentiation will have to be created through marketing and advertising. Of course this means that for the addition of more gTLD’s to have a significant effect on the overwhelming preference for .com, the operator of each new registry must have both an ownership interest in that gTLD and the freedom to set pricing for and otherwise manage that gTLD. It is also true that new gTLD’s will not be as effective for the desired purpose of challenging the dominance of .com if they are used for Web sites that do not fit. For example .shop would be much more valuable if only used for sale sites and .med for medical related sites. However, I believe policing of those issues should also be up to the registries. The market will be more efficient in dealing with all of these issues than ICANN could be.
Trademark Issues
I believe that the new domain dispute procedures will prove very helpful in dealing with trademark related disputes. However, because of the sometimes overwhelming abuse by unscrupulous registrants, I strongly support the implementation of a database of famous and well-known marks as a mandatory screen for filtering out the registration of domain names that are confusingly similar to famous and well-known marks. I believe that the principles relating to the development and implementation of this database should be accelerated so as to avoid hindering the addition of new top level domain names.
Split of Register and Registry Functions
I prefer the approach of position paper A with respect to splitting the registry and register functions. If the business model of the registry makes it more reasonable for the registry to also handle the registrar functions, than the registry should be permitted to do that. Otherwise, the qualified registrars should have those responsibilities.
Fairness and Just Allocations
So how will the new domain names be allocated? One of ICANN’s most important responsibilities is to assure that this is done in a fair, just and open manner. Allowing both profit and not-for-profit registries should be allowed. Any individual or entity meeting necessary requirements relating to technical and financial capabilities should be permitted to apply for ownership of a top level domain name. There should be restrictions on the same entities and/or members of the same family directly or through entities applying for and/or owning more than one gTLD at the same time. The applicants, rather than ICANN, should decide which domain names they want. Any gTLD granted should be subject to revocation for registering a gTLD that is confusingly similar to another’s marks. However, it should be understood that generic gTLD’s like .shop, .firm, .law etc. are generic and are up for grabs. Because there would be many more than 10 applicants for the first 10 domain names and many more than one applicant for each of the more desirable gTLD’s, ICANN could hold a lottery to resolve those issues. To make the process more equitable, each winner should be required to begin operations within a set period of time and not be allowed to sell a controlling interest (in any form) for some period (to prevent a large company from monopolizing the process by hiring others to file 50 applications for the same domain name). Another approach I would favor would be to decide questions of which of two or more applicants for the same generic domain name would be entitled to that name by an auction process with the proceeds going to improve the structure of the Internet in some acceptable way.
Conclusion
I favor the addition of new gTLD’s subject to the following:
2. Each operator of a top level domain name would own and be free to set pricing and otherwise determine the operations of that gTLD. This would allow each domain name operator to balance pricing versus marketing and advertising expenses etc. In other words the market, rather than ICANN, would control.
3. A database of famous and well-known marks would be used to screen additional second level domain names similar to such marks.
4. A split of registry and registrar functions would not be required if detrimental to the business model of any proposed new domain name.
5. The allocation of the first 10 domain names and competing applications for the same domain names (not protected by trademark rights) would be determined by lottery and/or auctions. Great care would be taken to make this process fair and open.