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Overview

Launching more than 1,000 new domain strings was always going to be challenging.

A large number of issues have arisen — and a few of these seem to have been unforeseen. The scale of this unprecedented exercise is immense.

To give just one relatively "minor" example, there is an application in process for the domain string .spa. Spas are of course just one of thousands of products promoted on the web. Yet the Governmental Advisory Committee (GAC) has advised the ICANN Board not to proceed with the extension.

The answer must be that Spa is a town in Belgium, and therefore its residents have prior human and intellectual property rights in the name. Luxury hot tub products were after all named after the famed hot springs in Spa.

Sellers and providers of spas will be inconvenienced, but will presumably be permitted to apply for a string like .hotspa if they want to in the next round, without objection, or perhaps they might be allowed to alter their current application, that would be reasonable.

To give a "major" example, the GAC has given the same advice regarding Amazon's application for the .amazon string and Patagonia's for .patagonia.

The grounds are the same but the consequences more serious. The issue is — what prior rights do the people of the Amazon have in South America to the name — when their very name was usurped by Amazon, the online product company? Will Amazon, the company, be allowed to take over the name, leverage their trademark and operate a closed "walled garden" registry in defiance of the rights of the South American people?

This will be a major issue for Amazon, the company. There is a real likelihood they will not be permitted to use their own trademark as a domain string, while meanwhile, their competitors in contrast will be able to use theirs.

Fairness

In its Beijing Communiqué of April 2013, the GAC made a list of recommendations to ICANN. Its focus was to ensure the highest degree of fairness and justice in the emerging domain name system. The GAC made specific objections to specific domain applications as well as providing safeguard advice in a more general sense.

More info about the GAC objections to various new TLD issues can be seen in the Beijing Communiqué (PDF).

The Communiqué ends with a serious question:

"If serious damage has been a result of the past registration policy, will there be measures to remediate the harm?"

 

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Domain Controversies

Many issues concerning the domain string applications have sparked controversy.

"Sensitivity" is a word being used frequently — many applied-for terms concern concepts like religion, nationality, children, charity, medicine and the like. These are obviously delicate subjects and there is no surprise that they have drawn close attention. Naturally, various interest groups are going to try to protect the rights of the stakeholders in the interests of fairness and justice.

Another key issue involves the risk of huge monopolies being created — which may well happen if applications for closed generic domain registries are permitted. That is, some applications are for closed gTLDs in which just one company will own the entire domain inventory under a name extension, with none made available for registration to the public.

Here is a non-comprehensive summary of the main controversies:

The Issues

Domain Monopolies

In addition to the dot brand applications, which being based on trademark principles will be closed registries operated by the respective brands, a large number of applications for closed gTLDs were also received by ICANN. Under this model, a single corporation such as Amazon will own a string like .shop without reselling any dot shop domains to any other entities. Thus, they would themselves own every dot shop domain in existence like Book.shop, Sport.shop, Shoe.shop, Parts.shop, Swimwear.shop, Surf.shop, Cycle.shop, Camera.shop, Bargain.shop, Online.shop — the list goes on without limit.

Naturally, this proposal is attracting strong criticism.

The GAC's advice about closed registries, which it refers to as "exclusive access" is that they should serve the public interest. It remains to be seen if any of the companies involved can demonstrate that their "walled garden" domain registries serve the public interest.

This important issue is discussed in depth by SuperMonopolies.com.

Human Rights And The Developing World

The GAC has made a clear statement that human rights, including but not exclusively those expressed by the UN Universal Declaration of Human Rights, should be respected in all facets of the domain name system. The registries should also be operated in an open and non-discriminatory fashion.

In an ICANN discussion forum about the proposed closed generic domain names, one objector cites the International Covenant on Civil and Political Rights as grounds to disallow them:

"Each of the generic TLDs presents a market and there are generic brands like .blog which if were closed could pose serious threats to freedom of expression for those who wish to register .blog. Article 19 of the International Covenant on Civil and Political Rights (ICCPR) clearly provides for freedom of expression. The threat of limiting or restricting the ability of persons wishing to acquire .blog poses serious harm to the global blogging community and individuals..."

Salanieta Tamanikaiwaimaro. ICANN Closed Generics Forum.

An opinion from India highlights how words themselves are the heritage of all people, and the current program of potentially allowing closed domain strings by wealthy corporations is detrimental to the developing world:

"The doctrine of intergenerational equity and trusteeship over the nature and natural heritage will naturally extend to the language also.

"If developed world is given a chance to grab the usage of common heritage excluding others based on the criterion of $185,000 fee, the developing world is put to serious disadvantage and will further deepen the digital divide creating a new low of inequalities.

"It is an anti-competitive practice, unnatural and even immoral. Such monopolization of words generic in nature is antithesis of globalization and openness of world business beyond boundaries. It even amounts to colonization of Internet, which whole democratic world needs to oppose tooth and nail."

Madabhushi Sridhar, Front Page India Monopolizing 'words' as gTLD on Internet

Circumvention Of Trademarks

Domain names are like virtual or de facto trademarks. You do not need to acquire a mark for your domain, yet ownership automatically confers exclusivity to you. This is a powerful asset and it reinforces the value of having a memorable, intuitive domain. However, in the case of closed registries, many objectors believe this benefit is unfair. That is, the closed gTLDs would confer on their registry an anti-competitive advantage by giving it world-wide, exclusive "ownership" of the word to the right of the dot. This creates a risk of creating huge global monopolies, because the registry won't just own one name but many — a number without limit, in exclusivity. In this context, controversy has arisen against many domain applications, such as the L'Oréal application for a closed registry for .beauty. Imagine just one company owning every single .beauty domain in the world.

This possibility is analysed in a case study by Super Monopolies.

"ICANN, the public, industry associations and governments should carefully examine the threat to fair competition posed by exclusive ownership of common industry terms by a single member of that industry and consider appropriate action to prevent exclusive private ownership or control of generic industry terms.

"Domain names can function like trademarks as source identifiers. This will be especially so with the launch of numerous new gTLDs. Many domain name owners in fact use their domain names as a trademark. The view that domain names are mere addresses with no source-identifying function is a relic of the exclusive .com era..."

Jeffrey I.D. Lewis. American Intellectual Property Law Association. Comments on Closed Generic gTLD Applications

Moral And Legal Sensitivities

Registries in sectors such as children, health, finance, charity, intellectual property, gambling, education, corporate identifiers (like .inc) and the like — in other words, fields where factors such as integrity, accreditation and trust are particularly relevant — may need to be officially regulated. That is, the GAC advises that such categories should typically operate under some kind of supervision by a global committee of national oversight bodies. So the .bank string for example would be tightly restricted and operate under the jurisdiction of an organization comprised of relevant banking authorities from around the world.

Geographical And Cultural Sensitivities

The GAC and others have raised a concern that geographical regions in the form of domain extensions should not be permitted unless they have the clear support of the governments and people of those regions. Hence, the GAC has recommended that about a dozen applications for domains such as .guangzhou (Chinese IDN), .thai and .zulu should not proceed. (Similarly with .amazon and .patagonia as discussed at left.) This advice respects the human rights of the citizens of those regions.

String Similarity And Confusion

One of the problems with the new domain rollout is the potential for confusion by consumers between various strings. This issue is primarily concerned with visual similarities between pairs of domain extensions. An example of this is possible confusion between the proposed .hotels string and .hoteis (hotéis is Portuguese for "hotels").

Another example is VeriSign's objection to .cam (claiming it is too similar to .com, a registry it operates, and .network (claiming it is too similar, this time in meaning, to .net).

Singular V. Plural

Some of the domain applications are for singular and plural versions of the same term, such as .game & .games and .home & .homes. There is a risk that this will be confusing to the public. On the other hand, words such as .new and .news are distinctly different, and prohibiting one or the other would reduce the available domain spectrum. It will also be difficult to find a fair solution that won't harm one of the applicants.

 

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