[At-Large] IGO names: is this worth war?

bzs at TheWorld.com bzs at TheWorld.com
Tue Nov 1 20:01:34 UTC 2016

To a great extent this is the result of years of, I'm trying to think
of a softer word, corruption (in a generic sense), within the DNS
policy process.

Why have TLDs at all?

To present some sort of taxonomy to the user. By user I mean both the
purchasers of a domain and the general public.

For example one tends to believe that a domain ending in .GOV is a US
Govt agency (and even that usage raise objections.)

But at some early point for example .ORG, which was supposed to be for
non-profits or non-commercial entities, and .NET which was again
supposed to be for network operations entities or similar, were just
opened up to anyone and anything.

With a very few exceptions or minor counter-examples this became the
standard operating model.

You get approved as a registry and spin up registrars for .HOTEL or
whatever and you go to town selling them. Could be porn sites with
catchy names, I'll spare you any speculations, or personal blogs about
insecticides (ROACH.HOTEL!), whatever.

Because to suggest anything else was, and I've sat in those meetings
and hallway discussions, to say "we are taking away your revenue
sources" and that was just a horrible injustice.

So why have new TLDs at all? Other than to create products to sell.

One reasoning pushed was because with so few TLDs the name space was
crowded and not accommodating the fast-growing population of
legitimate businesses who wanted a domain which reflected their brand.

And of course the appearance of a taxonomy, a user could know that
RACING.BICYCLES might actually lead to some site interested in racing

Sounds very reasonable.

So for example if you were "Independent Bicycle Manufacturers" you
knew you would never have IBM.COM or even IBM.{ORG,NET,INFO,BIZ},
they'd all been bought many years ago. But perhaps you could have

And why not? That's how international trademark law works.

A mark is generally only defensible within a product or service area
(I know, more complicated, but in a phrase) and assuming that big
computer company doesn't sell bicycles the problem is, if not 100%
solved (legitimate conflicts are still possible), mitigated.

But at some point the Trademark Clearinghouse (TMCH) was invented so
anyone with a properly registered trademark in any product or service
area would get certain powerful rights in any new gTLD which could be
summed up as an exclusive right of first refusal.

So the computer company gets first shot at IBM.BICYCLES particularly
if the bicycle manufacturing group never registered "IBM", perhaps
can't meet the TMCH registration requirements even though they may
have legitimate rights in the mark as pertains to bicycles.

Further, if this bicycle group does manage to get IBM.BICYCLES they
would have to acknowledge at registration that they are aware that
this string ("IBM") is registered in the TMCH to the computer company
and the computer company gets an immediate warning from TMCH that
someone just registered a domain with their string.

They may feel this is not a propitious start and understandably so.

Which raises one question as to why these IGOs didn't just go the TMCH
route and snatch up WHO.BICYCLES etc as each went into what's called
their "sunrise" period when only those with proper TMCH registration
can purchase a domain in that TLD?

Too expensive for them perhaps? Ok, then we're just arguing about the
price not the principle. The yearly TMCH registration fee is US$150
and sunrise registrations with a few notable exceptions are around
US$100-US$200 each.

I suppose they would argue that 1,000+ such registrations does get
expensive but this is circular: Only if one accepts they must have

Or maybe there is a principle involved?

Why, for example, should a valid IGO be bothered with all that
minutiae when their "rights" in the string should be
self-evident. Clearly they are more important than multi-national
corporations or tens of thousands of other civil society organizations

I don't mean to pick on IGOs. They may well have legitimate grievances
and needs in regards to this issue.

But what is the overarching rule in question here? Merely that squeaky
wheels get all the grease?

The point of this whole exercise has been to show where this
abandoment of any claim of taxonomy, or any cogent principles at all
really, have led.

New gTLDs were opened soas to provide an opportunity for legitimate
brand holders and others who wouldn't normally conflict under int'l
trademark law to obtain a meaningful domain.

And then slammed back shut in cases they would likely apply via TMCH
and in particular threats of URS -- an ICANN process for a brand
holder to shut down and usually obtain a domain (if successful) which
they believe infringes on their mark. Whether or not that claim has
ever been examined through the eyes of actual trademark law other than
in passing, generally not.

Don't get me wrong. I am not criticizing TMCH per se. They serve a
useful function and in my experience do it well.

My criticism is that it's a result of trying to patch up some rather
broken, or perhaps put better non-existent, policies.

Since almost all TLDs are meaningless anyhow except in the eye of the
beholder and don't claim to, for example, reflect WIPO or USPTO
trademark categories even in principle, not in the slightest, then
where else could this all go?

As I said there are a handful of exceptions. For example .MUSEUM was
introduced in 2001, long before this current new TLD program, and
seems to successfully limit registrations to actual museums by some
reasonable-looking criteria. And .COOP released in the same year
(2001) exclusively for cooperatives. There are also several in the new
GTLD round though only time will tell if these promises will be
adhered to.

Ok, so almost no one has ever heard of .MUSEUM or .COOP. even as they
enter their 17th year of service. They are nonetheless valid

What does all this say about these current fulminations?

That given a poorly designed system based on almost no principles it's
not surprising that simple questions such as what rights do IGOs have
in their marks (e.g., in .BICYCLES) become gut-wrenching exercises
yielding existential threats of mutiny to even be heard.

This is how chaos looks in its full realization.

P.S. Any marks or TLDs mentioned above are purely illustrative.

        -Barry Shein

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