[bc-gnso] pressing the BC recommendations for dot-brand TLDs
Mike Rodenbaugh
icann at rodenbaugh.com
Fri Jan 28 20:42:55 UTC 2011
Sarah, are you saying that we should try to define a "dot-Brand" TLD which
should have different rights than anyone else? Putting aside for a moment
the issue of whether and how to do that, do you think there is any realistic
chance of getting any sort of implementation like that at this point? Could
our efforts be better spent on proposals around "Single-Registrant" TLDs,
which will include dotBrands but are not nearly as objectionable because
there is no argument about what is a 'brand'? What is the downside to
trademark owners from that approach?
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1 (415) 738-8087
<http://rodenbaugh.com/> http://rodenbaugh.com
From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of
Berry Cobb
Sent: Friday, January 28, 2011 12:00 PM
To: bc-gnso at icann.org
Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs
Sarah,
Thank you for your contribution. In the context of your explanation below,
how do you view the following TLDs that have registered marks with the
USPTO?
.am
.biz
.coop
.fm
.la
.name
.org
.tel
.travel
.us
Berry Cobb
Infinity Portals LLC
berrycobb at infinityportals.com
http://infinityportals.com
720.839.5735
From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of
Deutsch, Sarah B
Sent: Friday, January 28, 2011 11:26 AM
To: 'icann at rodenbaugh.com'; bc-gnso at icann.org
Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs
I'd like to differ on a couple of points. I don't think it's difficult to
determine what is a brand. Brands are trademarks. Ownership of a federal
trademark registration and other global trademark registrations are not only
proof of a "brand" but confer nationwide exclusive rights to use that mark
for the goods and services in the application. However, I would distinguish
that the "brand" be a trademark that is registered and used for goods and
services unrelated to registry services. The mark should be used in
commerce for unrelated goods and services well before that brand ever gets
awarded a TLD. It's my understanding that the BC has long opposed the idea
that a TLD alone can become a brand -- only an existing trademark, such as
CANON for cameras could be recognized as a brand TLD.
BTW, it's my understanding that certain TLD applicants are inappropriately
trying to lock up trademark rights in their "brands" at the PTO before ICANN
has even awarded them a contract to operate the TLD. Whether ICANN awards
them a contract or not, the PTO has rule that in the Trademark Manual of
Examining Procedure confirming that registry services alone are not
registrable as trademarks. When you apply for a trademark registration, you
need to sign a declaration under penalty of perjury that you either have a
bona fide intent to use the mark or have rights to use the mark in commerce.
I don't see how anyone can sign this declaration in good faith given the
fact that ICANN has not yet considered their application, several may be
applying for the same TLD and the PTO's rule that such services are
unregistrable.
Sarah
Sarah B. Deutsch
Vice President & Associate General Counsel
Verizon Communications
Phone: 703-351-3044
Fax: 703-351-3670
_____
From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of
Mike Rodenbaugh
Sent: Friday, January 28, 2011 12:27 PM
To: bc-gnso at icann.org
Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs
I generally support Berry's comments too. I appreciate the effort to devise
clear rules. I offer a few more thoughts fwiw.
I have argued that all TLDs are in fact brands of their registries, as by
definition they are indicators of source of the registry service. Also I
can envision lots of companies, including current registrars and registries,
who might benefit from the SRSU model as Berry exemplifies it. I envision
that many of them who essentially will allow use of domains to the public
(i.e. to all Facebook members, in Berry's example) would have robust
content-monitoring systems, and would see benefit to exercising quality
control over how all domains within the TLD are used. The 'types' of TLDs
that could employ models like this may extend well beyond what we think of
'dotBrands' today (i.e. .canon and .facebook). So long as the TLD operator
is ultimately responsible as the registrant as well as the 'registration
authority', from the BC's perspective these models should be encouraged.
But these models may be disruptive to the status quo in ICANNland, and so
did not get very far in the Vertical Integration working group. With the
Board's resolution on VI, it seemed that the SRSU and other innovative
models were being encouraged. Yet now some elements of the "Code of
Conduct" are being proposed as a tool to essentially restrict business
models like SRSU, in favor of the incumbent ICANN contracting parties and
those who have designed their TLD models around the status quo. The BC
should fight against that, as our support of the newTLD program has always
been founded on the innovative, competitive new uses of the DNS that are
envisioned (and those that have not been envisioned).
Best,
Mike
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1 (415) 738-8087
http://rodenbaugh.com <http://rodenbaugh.com/>
From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of
jarkko.ruuska at nokia.com
Sent: Friday, January 28, 2011 5:30 AM
To: berrycobb at infinityportals.com; bc-gnso at icann.org
Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs
Dear all,
Just wanted to express my support for Berry's definition of a Single
Registrant TLD. In my opinion this is a simple enough (and probably the only
feasible) way to define such a thing.
BR,
-jr
From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of
ext Berry Cobb
Sent: 28. tammikuuta 2011 2:12
To: 'bc - GNSO list'
Subject: RE: [bc-gnso] pressing the BC recommendations for dot-brand TLDs
Thank you Steve for updating the BC. Adding to Steve's points......
The reason ICANN Staff, experienced Registry Operators, & some other
stakeholders will not sign on for "carve outs" is because there is NO BRIGHT
LINE DEFINTION FOR A BRAND. In the context of TLDs what is a BRAND? Is it
because they are Fortune 1000 company? Do they own Trademarks in the USA or
Europe? Do they earn over $2 billion dollars a year in revenue? Where do
we start to draw the line? If some sort of bright line exists, then please
share. If it exists then I doubt we would see the pushback experienced
today or during the VI WG.
In my opinion, if the BC and IPC ever expect any headway regarding the
"dot-brand" concept, then we MUST stop using "DOT-BRAND." Within my short
ICANN career, one thing I've noticed is that a BRAND is a loaded and charged
word among the community. If the BC supports "carve outs," then the case
must be presented very specifically and using BRAND is not the way forward.
Framing this concept should embrace the use of "Single Registrant" only.
Notice how Single User & Multiple User is omitted? The main reason SRSU
gained support during VI is only because of the Single Registrant component
and it's limitations in how domains were registered and used. Anything
beyond SRSU was poking a stick at a tiger. I remind everyone the reasoning
for SRSU & SRMU is only because BRAND could not be defined.
The following is how I view the possible scope of a "Single Registrant" TLD:
. Any 2nd, 3rd, 4th,5th level domains registered are owned and
operated only the by the entity that owns the TLD
. All WHOIS information for registered 2nd level domains reflect the
entity that owns the TLD
. If the entity chooses to deploy content or allow use by others
external to them, the entity is still responsible or liable for that domain
and its content
. The entity may register its own domains without equivalent access
to other Registrars (RAA concepts should still be used, but ZERO
registration fees to ICANN)
. The entity may deploy and use its 2nd level domains how it sees
fit and the Reserve Names list no longer applies
. The entity can "warehouse" domains because it owns the domains
. The entity is required to provide Zone File Access for monitoring
and compliance
. I am sure there are other elements to define the boundary here..
. Therefore, much of the Code of Conduct is meaningless to a "Single
Registrant" TLD
So, using the Cannon example from Steve below, the above "Single Registrant"
concepts can satisfy the "carve outs" defined by the BC. If Cannon chose to
register 2nd level domains to their customers, partners & vendors, but it is
still designated as the Registrant, then the Single Registrant carve outs
still apply. What about the Facebook use case? The one batted around most
often is berrycobb.facebook. If Facebook chooses to register and supply me
a domain and the defined "Registrant" remains as Facebook and Facebook is
willing to take on the risk for the content I deploy on berrycobb.facebook,
then I imagine the stakeholders listed above will probably not have much
issue with "Single Registrant carve outs." This is the essence to "Single
Registrant, Single User" concept.
Conversely, any hope for consensus in VI quickly broke down with a use case
for "Single Registrant Multiple Users." Using Facebook as an example
again...if FB chose to allow me to register berrycobb.facebook, but instead
I am designated as the Registrant, Facebook now competes head to head with
other Registrars & Registries in the domain registration business. This is
the crux of the debate. Where does one draw the line as Facebook being a
social media "BRAND" vs. Facebook a social media "BRAND" that also chooses
to register domains and compete in the domain market. If any exceptions or
carve outs are given to FB because they are designated a "BRAND", then
wouldn't other entities competing for the same registration dollar be at a
competitive disadvantage because they are bound by the full extent of the
Code of Conduct?
Most will recall that I did not support the sections of the BC Position that
called for these SR exceptions, because it did not provide a bright line
solution for the community. Rather, it called for nebulous, self-serving,
carve outs that only provided confusion. I hope we do not repeat the same
mistake for future BC position statements. I'm starting to believe that no
position is better than a half-baked one.
With all this said however, I CAN support a "Single Registrant" concept,
just not as we have it defined in our position today. There is no doubt
that without some sort of designation for single registrant TLDs the Code of
Conduct will certainly interfere with operations and may in fact deter some
applications. The challenge is that the "Single Registrant" type of TLD is
NOT defined in the Guidebook. Until it is, then any exceptions will not
make the next AGB. I am willing to join a team of BC members to develop a
specific proposal that not only benefits the BC, but benefits the entire
community by relieving confusion.
If we expect any momentum, the BC must come together and define a reasonable
solution that ICANN Staff and Community can embrace. I am sure my fast-run
scope definition above has several holes. So I welcome contributions to
fill them. Gripes, complaints, & moans are also welcome if you feel I am
way off base.
Thank you, B
Berry Cobb
Infinity Portals LLC
berrycobb at infinityportals.com
http://infinityportals.com
720.839.5735
From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of
Steve DelBianco
Sent: Thursday, January 27, 2011 12:11 PM
To: 'bc - GNSO list'
Subject: [bc-gnso] pressing the BC recommendations for dot-brand TLDs
To: BC Members
Re: ICANN Con call today regarding Registry Contracts
I joined a large con call today hosted by ICANN, to discuss new gTLD registy
agreement. (see description at bottom of this note)
Berry Cobb and Jon Nevett were also on the call.
When we got to the Registry Code of Conduct, ICANN staff mentioned they had
received many comments on how this would or would not work for dot-brand
registries.
At that point I brought up the BC concerns expressed in our Guidebook
comments filed 6-Dec in Cartagena.
I used the example of Canon, since they have said they may pursue a
dot-brand.
I said Canon might want to operate its own Registrar and restrict
registrations to its own operating divisions, like copiers.canon and
cameras.canon
And Canon might want to manage a big sub-domain of photographers using Canon
cameras, like [name].photos.canon
I said The Code of Conduct should not restrict dot-brands from using an
owned or closely affiliated registrar to register and manage names that it
controls. (e.g., for divisions, product lines, locations, customers,
affiliates, etc. )
I gave the BC recommendation to insert this clause into the Registry Code
of Conduct:
4. Nothing set forth in articles 1, 2, or 3 shall apply to a
single-registrant ('dot brand') Registry Operator acting with respect to
user data that is under its ownership and control, or with respect to
conduct reasonably necessary for the management, operations and purpose of
the TLD.
An experienced registry operator on the call said our 'carve out' would
allow 'gaming' and abuse. (they say that a lot).
ICANN Staff is very resistant to any 'carve-out' for dot-brands. They
oppose any exception (or even a definition) for dot-brand.
Craig Schwartz said ICANN didn't want to get in the business of monitoring
Canon's copier business. ( I think that was the point of our recommendation
- we don't want ICANN getting involved in how a dot-brand allocates
registrations to entities it owns or controls)
Will discuss more on our Monday call, I hope.
--
Steve DelBianco
Executive Director
NetChoice
http://www.NetChoice.org and http://blog.netchoice.org
+1.202.420.7482
Temporary Drafting Group Work Session on New gTLD Base Registry Agreement
Issues
<http://blog.icann.org/2011/01/temporary-drafting-group-work-session-on-new-
gtld-base-registry-agreement-issues-%e2%80%93-to-be-held-27-january-2011/> -
To Be Held 27 January 2011
by Craig Schwartz on January 14, 2011
The Temporary Drafting Group will hold a teleconference on 27 January 2011.
The issues open for drafting/discussion during the call will include:
* Suggestions for additional language for Specification 9 (the
Registry Code of Conduct)
* Proposed modifications to conditions related to the termination of a
registry services agreement
* Suggestions for clarifications to provision requiring advance notice
of registry price increases
* Concepts for continued registry operations instrument to provide
continuity of services
Results:
This is not a formal public consultation, but is intended to inform drafting
which might make up a later public consultation. Any results from the
Temporary Drafting Group will be included in documents that will be posted
for public comment. No results from the Group will necessarily be used in
any agreement drafts, but inputs from the Group will be considered by the
ICANN Staff in making recommendations relating to questions discussed or
posed to the Group.
Session:
This third Temporary Drafting Group session will be held via teleconference
on 27 January 2011 at 18.00 UTC (http://timeanddate.com/s/1xxz), and is
scheduled to last for 120 minutes.
Participation:
The Temporary Drafting Group was formed in early 2010 and announced in a 28
April 2010 blog
<http://blog.icann.org/2010/04/temporary-drafting-group-work-session-on-new-
gtld-implementation-issues-%E2%80%93-to-be-held-3-may-2010/> post. If you
would like to participate, please submit your name to TDG-Legal at ICANN.org,
and we will provide you with information for the call.
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