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

[Jonathan Weinberg <weinberg@mail.msen.com>]

	Kent writes that: [1] if we introduce new general-purpose TLDs, then, at
least some of the time, firms will simply re-register their existing .com
names in the new TLDs; [2] we need more central planning of the name space,
so as to prevent new registries from picking unacceptable TLDs such as .usa
or unused ISO-3166 names; [3] "the first few TLDs *must* be introduced in a
very very controlled fashion"; and [4] registries' claimed trademark rights
in their TLDs will vastly complicate ICANN's ability to enforce its rules.
(I apologize for the paraphrasing, but I find it really hard to read
interlined comments at the third level and beyond; I've copied Kent's
entire message below).

	I agree that, some of the time, firms will re-register their existing .com
names in new general-purpose TLDs.  NSI, as Kent points out, is encouraging
people to do just that in .net and .org.  That's inefficient, wasteful and
benefits nobody except the registration authorities.  In other cases,
though, other entities will get the new names -- either because the firm
with the .com registration decides that it's not worth it to try and lock
up its SLD in every TLD, or because the new entity otherwise registers
first.  That will constitute a meaningful expansion of the name space.  The
question, then, is whether the benefits of the new TLDs outweigh the
disadvantages.  I think they do.  Indeed, the more new TLDs we introduce,
the more likely it is that firms with existing .com registrations will
decide that they can survive perfectly well *without* locking up their
names in every TLD.

	I also agree that ICANN should be able to impose *some* limitations on
possible TLD strings.  Someone could do a lot of mischief will .usgov, say.
 Existing trademark laws are more than sufficient to prevent unauthorized
folks from seeking to run .ibm, but it makes sense to me that ICANN could
have a role with respect to TLDs that are more generally deceptive, and
thus raise consumer protection issues.  I can also understand why ICANN
might seek to impose limitations on .fuck, say, or .godhatesfags (though
Lord knows that sort of thing has been a headache for NSI).  It's a long
way, though, from there to the view that the name space must unfold
according to a central plan.  We can address these concerns in a much more
limited way, simply by promulgating a few rules describing categories of
off-limits TLDs, and designating a decisionmaker whose authority is limited
to the question whether a proposed name violates those rules.

	As for the statement that "the first few TLDs *must* be introduced in a
very very controlled fashion": One sees this sort of statement a lot.  I've
even written it myself (in documents designed to capture rough consensus
reached with other people).  But it occurs to me that I have no idea what
it means.  Is this to say that new TLDs should be introduced more slowly
than operational considerations would otherwise dictate?  Why, exactly,
should that be so?  Because otherwise INTA will scuttle everything?  (Is
that, in fact, true?)  Or is the argument (as Kevin urges) that the first
new TLD should be one with only limited appeal, to minimize operational
challenges?  Or is the point something else?

	Finally, as for "independent intellectual property claims on the TLD
name": Kent raises the issue of ICANN's enforcement powers if a TLD
registry refuses to follow ICANN rules.  As Chris points out, though, the
complete answer to this question lies in the contract between ICANN and the
registry operator.  That contract should provide for an agreed-upon
procedure to resolve such disputes, and the registry should agree in the
contract that the outcome of that procedure trumps any asserted TM rights.
If there's more to this problem, I don't see it (and I've been a lawyer for
a long time).

Jon


Jon Weinberg
Professor of Law, Wayne State University
weinberg@msen.com



At 09:22 PM 7/11/99 -0700, Kent Crispin wrote:
>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
>
>