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

Evan Leibovitch evan at telly.org
Mon Jan 28 21:03:43 UTC 2013


On 28 January 2013 15:15, Eric Brunner-Williams <ebw at abenaki.wabanaki.net>wrote:

> 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.
>


For better or worse that' s not how the process works. Applications don't
have to prove legitimacy, by an objection process exists to address those
considered illegitimate on specific grounds. All those not being found
illegitimate are accepted. To act otherwise at this point, contrary to the
existing procedures, is to invite lawsuits.

There is no political entity called "Amazon", though there are many called
"Amazonas". There is already a process in ICANN to deny names similar to
political entities (countries, provinces, cities, states) without approval.
If ".amazon" passes that then a community-based objection -- coming from
people OF that area, not North American proxies, need to object.

In the case of Patagonia, that is a region and not a political entity name.
It, like Amazon, is also the name of a multinational commercial entity. It
will be significant, at least to me, to see the history of objections
launched against these domain names at the second level.

In the case of .nyc we have a situation in which the city government has
made a clear choice according to ICANN guidelines. While I am extreley
symathetic to Tom' s original vision for .nyc and far prefer it to that in
the existing application, it is hard to imagine an objection that could
avoid forcing ICANN to get involved in New York's municipal politics.
Objectively, a democratically-elected NY city council would be very
difficult to second-guess as to determining relative community support of
the two approaches.

And as for .health, I personally see it as no different from any other
non-brand dictionary word being applied for as a TLD. Whether this
particular TLD survives or fails will depend on its ability to earn and
maintain public trust, or if it is just seen as no better than dot-com as a
source of health-related materials. I see no grounds for objection on that
name. If it turns out to be useless it won' t be used.

- Evan






>
> > 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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-- 
Evan Leibovitch
Toronto Canada

Em: evan at telly dot org
Sk: evanleibovitch
Tw: el56



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