Re: [wg-c-1] WORK: Question #1 New GTLDs

[Kent Crispin <kent@songbird.com>]

On Sun, Jul 11, 1999 at 10:35:31PM -0400, Jonathan Weinberg wrote:
[...]
> 	Kevin suggests that adding new *general-purpose* TLDs won't do a lot of
> good, b/c the entities with .com registrations will simply run out and
> register the same domain names in any new general-purpose TLDs as well.  I
> wonder, though — is that really what would happen?  At least some of the
> time, in the race to the registry, other entities will get there first.
> And in situations where a bunch of different people or firms *each* have a
> legitimate interest in using a particular string in their domain name, I
> wonder if a proliferation of general-purpose gTLDs might most easily allow
> them the opportunity to do just that.

It is clear that at least some of the time that will happen.  In 
fact, we see that happening in .com, .net, and .org now.

[...]

>  This causes me to be
> skeptical of any approach calling for extensive central planning of the
> name space.

The horse is out of the barn -- some central planning of the name 
space already is in place, and more is necessary.  We can't, for 
example,  let new registries arbitrarily pick an presently unused 
ISO-3166 name.  It probably would be a bad idea to let one use 
".usa".  It would be a bad idea to allow ".ibm", etc.

> 	Kevin indicates that the trademark community will oppose new
> general-purpose TLDs even more fiercely than they oppose new
> special-purpose TLDs, and I think he's right.

I don't think he is totally right.  I think the TM community might 
very well go for a few new gTLDs, introduced in a very controlled 
and careful fashion.

What am I saying?  If there is anything that should be very clear, 
it is that the first few new TLDs *must* be introduced in a very 
very controlled fashion.

[...]

> Finally, I think Kent's concern about "intellectual property encumbrances"
> addresses a side issue.

Nope.  It's a central concern.  If the registry has independent
intellectual property claims on the TLD name, it vastly complicates
ICANN's regulatory schema.  Suppose that Ambler gets his ".web"
registry in the root, and agrees to follow a standard shared registry
model.  In two years .web is very successful, and has 5000000
registrants.  Then IODesign moves to Antigua, and unilaterally says
that it will no longer operate as a shared registry -- it will serve
as both the registry and the sole registrar from now on. 

What does ICANN do? Any lawsuit would be very expensive.  Naively,
you might say that ICANN could simply remove .web from the root. 
But, in the US, at least, that would open ICANN up to lawsuits from
IODesigns customers, because their names are no longer resolving due
to an action of ICANN's.  Furthermore, there are a *lot* of those
customers, and some of them are big corporations with deep pockets... 
another very expensive legal battle for ICANN.

There is another solution: if the registry database has been 
escrowed, ICANN can simply designate another registry for .web, give 
them a copy of the rogue registry's escrowed data, and point the 
root servers to this new registry.  All the customers continue to 
have their names resolved, all the registrars can continue to 
register names in the .web registry, and so on.

If the registry has significant IP claims over the TLD, though, this 
doesn't work anywhere near as well -- in fact, it probably doesn't 
work at all, because the rogue can get a restraining order 
preventing the new registry from using the name.

Then there is the issue of what happens when a registry fails,
financially or otherwise.  Do the IP rights go to the highest 
bidder?  One of the creditors?  ICANN?

ICANN's legal life is vastly simplified if the registry has no IP 
rights in the mix.  NSI has made half-hearted attempts in the past 
to claim the "com" name, but backed down.  Can you imagine how much 
it would add to NTIA's problem if NSI had meaningful claims to 
".com"? 

> Right now, various folks are arguing about who
> should get the right to operate particular registries, and how they should
> be run.  Each side has sought to bolster its legal position, in those
> debates, by seeking governmental recognition of purported trademark rights
> in the TLD.  But the main dispute is over the $64 question of who gets to
> run the disputed registries, and how.

That is a secondary question after a deeper question.  If registries
are indeed non-profit cost recovery operations, then it doesn't
matter much who operates one.  If registries are for-profit
goldmine monopolies, then it matters a great deal. 

-- 
Kent Crispin                               "Do good, and you'll be
kent@songbird.com                           lonesome." -- Mark Twain