[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 22:39:22 UTC 2013

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

> 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:

Thank you for mentioning my comments.

> > 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.

The response to my comments were interesting, if totally off the mark.

First, I suspect the author of this comment may err as to the
> actual issue. I doubt that the standing of At Large requires [...]

Second, I suspect the author of this comment may err as to the necessity
> [...]

Third, I suspect the author of this comment may err as to the necessity
> [...]

Fourth, I suspect the author of this comment may err as to the necessity
> [...]

My evaluation was not at all based on what is *necessary* according to
ICANN regulations. I was, subjectively, commenting on what was the Right
Approach To Take according to my own personal evaluation of the objections.
In advice to the At-Large gTLD Review Group (and my ALAC colleagues should
these matters ever come to vote), I was simply offering what I thought was
a reasoned personal analysis of how the objection request ought to be

In other words, while the response is appreciated its suspicions are
unfounded. I did not err on issue(s) of necessity because I never invoked
them necessity as a rationale.

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.

This is another interesting point. However, we do have some prior activity
through which we can  measure whether or not confusion is indeed "difficult
to anticipate". That is, "patagonia" and "amazon" have existed as
second-level domains for quite some time, within existing TLDs (including
the most commonly-used .com), by the commercial entities applying for the
respective new gTLDs. We should indeed be able to measure -- let alone
anticipate -- levels of confusion based on this *existing* alleged name
appropriation. If reduction in confusion is to be offered as a rationale,
the onus is on objectors to demonstrate anticipated confusion for amazon
and patagonia as TLDs. If no confusion has been experienced by these
strings' use at the second level, it is unreasonable to simply assert that
confusion will immediately appear should these same strings be used at the
top level.


- Evan

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