[NA-Discuss] Opinions requested from the At-Large community on objection comments received on new gTLD applications.

Eric Brunner-Williams ebw at abenaki.wabanaki.net
Mon Jan 28 20:15:27 UTC 2013


On 1/26/13 1:41 PM, Eric Brunner-Williams wrote:
> it is my considered view that each of the four strings: {amazon,
> patagonia, nyc, and health} should be allocated only if applicants can
> be found which meet objective, and feasible criteria.

Dev,

You've had an opportunity to add responses the to you email sent to
the following:

	afri-discuss at atlarge-lists.icann.org,
	apac-discuss at atlarge-lists.icann.org,
	euro-discuss at atlarge-lists.icann.org,
	lac-discuss-en at atlarge-lists.icann.org,
	na-discuss at atlarge-lists.icann.org, and
	at-large at atlarge-lists.icann.org

In particular, mine beginning as follows:

> it is my considered view that each of the four strings: {amazon,
> patagonia, nyc, and health} should be allocated only if applicants can
> be found which meet objective, and feasible criteria.

To one or all of the staff managed sites:
https://community.icann.org/display/newgtldrg/{.amazon_OG,.patagonia_OG,.nyc_OG,
and .health_OG}

Lacking write permissions to each of these URLs, I've not added my
responses, but trust that you will do so before the response period
expires. If you would like I can send you text with conventional
capitalization.

While looking for a means to add comments to those already present I
came across one I thought worthy of note, I reproduce it in its
entirety, without reference to its author, here:

> I am ambivalent about the objections to both .amazon and .patagonia.
> 
> I understand and acknowledge the claims of the communities to the term, what is at issue is whether they have exclusive claim, I note that the proponents did not see fit to attempt their own geoTLD applications, and there has been no attempt to challenge the current registration of patagonia.com. Had there been a conflict between a geoTLD application and commercial application for the same string, I would actively support the geographic one. But in the absense of a desire by the residents of the patagonia region to request their own TLD I am dis-inclined to impede the application.

First, I suspect the author of this comment may err as to the actual
issue.

I doubt that the standing of At Large requires a determination of
whether or not an applicant, which may be identified by string
contention, not merely exact or partial string match, possibly in
another script than the instant application, or an objector, has
"exclusive claim" to the string.

Second, I suspect the author of this comment may err as to the
necessity of a party bringing an objection having, as a predicate
condition, submitted any application, let alone an application for the
string associated with the instant application.

Third, I suspect the author of this comment may err as to the
necessity of exhaustion of remedies for a legacy registration, under
the independent rules for legacy namespaces, adopted when the
Corporation was formed and subsequently modified, but never extended
to new namespace applications through the numerous drafts of the
Applicant's Guidebook, for a registration made a half decade before
the Corporation was formed.

Fourth, I suspect the author of this comment may err as to the
necessity of any of predicate act by any third party as a precondition
for At Large to exercise its standing to object to any application.

With respect I suggest the better course of analysis is to review the
record for the grounds for objections, and the standings required of
the objectors, here the attempted appropriation of unmistakable
regional identifiers by managers of brands intentionally exploited
remotely to the identified region, to enhance trademarked merchandise
profit margins, with no identifiable benefit to the name originating
region, before waiving the standing of At Large based upon some other
rational for non-objection.

Independent of the above, I suspect that the Corporation's "outreach"
expenditures relative to the 2012 gTLD application process in each
region is substantially less than its expenditures in the North
American region (domicile of record of the .patagonia applicant) or
the European region (domicile of record of the .amazon applicant).

Also independent of the above, the purpose of trademark protection is
the prevention of confusion in the market. The claim that absent the
contract to operate a regional identifier as a private commercial mark
confusion exists in the market would be difficult to substantiate.
However, the confusion in the market resulting in the grant to a
private commercial use of a regional identifier is not difficult to
anticipate.

The first of these two independent observations speaks to the duty of
an agency of government (United States), or its delegated agency
actor, under tha Administrative Procedures Act of 1946, to make
effective, not fictional, notice and comment, prior to rule making.
The second of these two independent observations speaks to the duty of
a market actor cognizant of trademarks to avoid acts likely to
increase confusion in the market.

Eric



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