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

Thomas Lowenhaupt toml at communisphere.com
Mon Jan 28 23:20:02 UTC 2013


Evan,

About your comment regarding our .nyc TLD objection:

    /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
    sympathetic 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./

First: I am extremely happy to hear of your support of the vision of a 
community TLD that we've advanced.

Second: When you say "/it is hard to imagine an objection that could 
avoid forcing ICANN to get involved in New York's municipal politics/" I 
share your concern. However, (see my third point...)

Third: Your presumption that our /democratically-elected NY city 
council/ had a hand in developing or approving the city's .nyc 
application is inaccurate. The city council did not vote on the 
agreement. The city council did not hold a hearing on the agreement 
under discussion. The then Commissioner of the city's Department of 
Information and Technology and Telecommunications, Carole Post, signed 
the agreement with NeuStar, with delegated authority to sign on behalf 
of the city (I presume).

A city grassroots governance body recently passed a resolution 
requesting closer engagement of the community in the development of the 
.nyc TLD. Speaking about the long promised but as of yet unseen 
Community Advisory Board (CAB), the Community Board recommended on :

  * that the .nyc TLD's Community Advisory Board take a careful view of
    this most important resource, and that it be provided with adequate
    resources to assure its effective operation.
  * that Community Boards, civic organizations, not-for-profit entities,
    and local small businesses be represented on the Community Advisory
    Board.
  * that domain names that support civic life should be thoughtfully
    reserved for use by the city's neighborhoods, community
    organizations, not-for-profit institutions, and local small businesses.
  * that civic not-for-profit organizations, and small businesses be
    provided with adequate notification of domain name selection
    periods, and the opportunity to select a good domain name.
  * that the city carefully coordinate the development of its Top Level
    Domain with the other cities that have applied for their TLDs,
    seeking opportunities for standardization and the sharing of good
    TLD governance practices.
  * that a plan be formulated to assure that the .nyc TLD is a
    sustainable resource: that domain names are recycled so they are
    available to New Yorkers today and tomorrow.


The Community Board is appointed jointly by the elected city council 
members and the elected borough presidents.

(Name Confusion Note: There's the promised Community Advisory Board 
(CAB) that's to engage specifically with the .nyc TLD. The Community 
Boards, one of which passed the above resolution, and the 2001 Internet 
Empowerment Resolution which first surfaced a civic TLD, were originally 
called Community Planning Boards,  but the "Planning" Boards name was 
shortened to Community Board to differentiate them from the Community 
School Boards. Ouch!)

But to the point at hand, I don't believe the possibly confounding 
politics of the matter are necessarily in question. Rather, its the 
merits of the four points in the guidelines that must be proved. And I 
think a review of our submission 
(https://community.icann.org/display/newgtldrg/.nyc_OG?focusedCommentId=40173861&%3Cspan%20id=) 
shows that there is a community is offering a substantial objection.

Finally, note that the application before ICANN is for .nyc (a regional 
airport code) and not .newyorkcity or .newyork.

Sincerely,

Tom Lowenhaupt

P.S. Your email reminded me that the matter is well beyond the capacity 
of my mini brain and I've reached out to see if this is within the remit 
of our pro bono public interest attorneys.

On 1/28/2013 4:03 PM, Evan Leibovitch wrote:
> 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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>
>




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