[Gnso-newgtld-wg-wt5] Conference call: city names

Thu May 3 13:21:42 UTC 2018

Dear Mike,

This is NOT about “Governments” – as these are usually never the city gTLD applicants. In most cases it is (and SHOULD be) a consortium of stakeholders representing the city constituents – the “Government” usually merely supports; but has no “ownership” of any sort. And in most cases doesn’t WANT – as that is not their “business”.

So when we look at the issue I must clearly support Jorge – who is quite wise in these matters:

A “trade mark” and a gTLD string are incomparable. A trade mark is always ONLY “protected” for a very tiny, tiny set of goods and services – you can’t even protect a trade mark for an ENTIRE Nice class – you must specify what WITHIN that class shall be protected. Trademarks rather protect the use IN THE SPECIFIED very narrow classification – and NOT the “string” itself. So you guys are turning the TM law upside down a bit :D 
A city gTLD however is unique – and once it’s gone the constituents of said city have lost their opportunity to express their identity.

So yes: A city Government COULD (if they fancy their own gTLD for tourism and eGovernment) utilize a string such as you proposed (city name plus an addition). But I really do not care about these very rare cases. I care about the typical city gTLD like .berlin – something owned by hundreds of stakeholder entities – managed with a constituency policy board, etc. 

City gTLDs are NOT about Governments – or the gTLD operator. They are about the CITIZENS OF THAT CITY – the constituencies of the place. THEY would be significantly harmed if deprived to utilize the string that is predominantly affiliated with their city! If there are two cities with similar importance (Cambridge UK vs USA for example) – then both can easily join forces and work together. These cases are SUPER RARE btw – mostly other cities are tiny and the city name is clearly affiliated with the large one. Nobody right in their mind would assume a .paris based domain would have the gTLD operator in Texas. But it would be fair if people in Paris Texas can register .paris domains, too!

The entire AGB 2012 notion that if somebody applied for a string identical to a city but doesn’t intend to “use it that way”: We should throw that out. It literally doesn’t matter what somebody “intends”. If it is an open gTLD then people from that city WILL register domains; whether or not you “market” the domain to them! Most registries do little to zero marketing anyways – they make the string available and try to get shelf-space. If it is a closed registry (e.g. .brand) then it’s even worse: nobody in the city can register. So why not simply getting rid of that rule?

I do agree however that we should “draw a line”: If a term like “bar” is worldwide affiliated with places where you buy drinks; then why does a tiny place “bar” has the right to stop the generic term gTLD? Doesn’t make sense. The question is: how to draw such line? Lists? Repositories? “Beauty Contest”-style panels? In 2012 there was no real “line” – there was a list of place names in ISO 3166 – I don’t think it worked so well. It missed LOTS of big places – and included TONS of unimportant ones.

Thanks,

Alexander.berlin

From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces at icann.org] On Behalf Of Mike Rodenbaugh
Sent: Thursday, May 03, 2018 10:49 AM
To: Jorge.Cancio at bakom.admin.ch
Cc: gnso-newgtld-wg-wt5 at icann.org
Subject: Re: [Gnso-newgtld-wg-wt5] Conference call: city names

Governments also have infinite, obvious alternatives to <.city> TLDs, such as <.citygovernment>, <.citycouncil>, <.citytourism>, etc.  Perhaps surprisingly, governments have managed to survive for the past 30 years even though they have not had the legal the right to "their" <city.com <http://city.com> > or even <city.ccTLD> second level domain names.  They still have no such legal right at any level of the DNS.  Some governments' fantasy to own such rights is just that, fantasy.  

To be sure, ICANN is not the proper body to grant governments such a right.  But unfortunately, ICANN went far too far in the last round kowtowing to governments, and requiring the "non-objection" letter.  That led to outright extortion by such well known geographic areas as SPA and BAR, among others, who had nothing more that a fantasy to control TLD rights to that name, plus ICANN's ill-advised, non-community-consensus requirement of the non-objection letter.  As I recall (and I could be wrong and will eat my shoe), that was an ICANN Staff implementation gift, not part of the consensus policy passed by GNSO and the Board.  Even if it was, it was ill-advised then, and should be eliminated for future rounds.

Country codes have been given special status in the DNS with ccTLDs and correspondent restrictions at the second level of the New gTLDs.  That was an original gift to national governments, extended stupidly to the second level by ICANN in the last round, solely to appease government obstructionists in that last round.  Subsidiary governments need to get over this; they don't have further rights to "their" name in the DNS.  Period.

Paris, France has no greater rights to .PARIS than Paris, Texas.  Or Paris Hilton.  Period.  But I would love to hear them fight out that issue.  ICANN certainly should not have predetermined it in favor of France or Texas, to the detriment of Ms. Hilton (and so many other legitimate users of the word Paris).  All three of those parties (at least) had equal rights to that TLD, and should have been put into a contention set to resolve it.

In substantial part, governments continue to rehash arguments made by IGOs in the various IGO Names policy discussions.  Those IGOs get nowhere with the broader GNSO community because they only have fantasy rights to "their" names (in many cases) and acronyms (in almost all cases).  So they scream to the Board and have delayed finality in those discussions for half a decade already.  But the GNSO is never going to agree with them, and the GNSO has primary TLD policy responsibility under the Bylaws, not the GAC.  Eventually, the Board must side with the GNSO, though they will put that off forever if they can, as they have done with IGO Names issues.

This GNSO group ought not be considering government pressure or fantasy rights.  If the Board wants to do so, that is their prerogative.  We need to develop policy in the real world, where governments coexist with businesses and other users of "their" names.  They have done so for 30 years.  I am confident in stating that not a single government has fallen, nor even been harmed, by the ability of absolutely anyone to register "their" name at the second level or at the top level.  Until any such harm is shown, why are we even discussing this?  What problem are we trying to solve, exactly?

Mike Rodenbaugh

RODENBAUGH LAW

tel/fax:  +1.415.738.8087

http://rodenbaugh.com 

On Wed, May 2, 2018 at 11:28 PM, <Jorge.Cancio at bakom.admin.ch <mailto:Jorge.Cancio at bakom.admin.ch> > wrote:

Dear all

The fundamental flaw with such an approach is that it forgets that TLDs are unique. There can be only one TLD with a given city name. there can be only one delegation of such a string.

City governments have political, social, historical, economic and legal responsibilities over their cities, and have (at least in Switzerland and other countries) rights on the names of their cities. There might be several cities with the same name, but under the 2012 AGB you had to obtain the non-objection from all of them if that was the case.

As for brands there may be unlimited numbers of business names and trademarks that use a given city name, usually as part of their names (e.g. City “insurances”, City “salami”, City “whatever”…) and with figurative elements beyond the name as such (the color, the font, symbols, etc.). For instance in Switzerland you are not allowed to register a city name as such as a business name – because this would mean that a private business is monopolizing that geographic name. 

Hence the crux, resolved in 2012 by the non-objection letter, was that several interests (public interests of a wide spectrum represented by the cities, community interests and multiple commercial interests in the form of brands) may converge on one string, one city name, one TLD. 

The non-objection letter was and is in our view a good way to get the more specific interests backing one application to a table with those who represent the corresponding city (and its public policy interests), in order to try to arrive at a mutually acceptable solution… 

Best regards

Jorge 

Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces at icann.org <mailto:gnso-newgtld-wg-wt5-bounces at icann.org> ] Im Auftrag von Greg Shatan
Gesendet: Donnerstag, 3. Mai 2018 06:27
An: Marita Moll <mmoll at ca.inter.net <mailto:mmoll at ca.inter.net> >
Cc: Icann Gnso Newgtld Wg Wt5 <gnso-newgtld-wg-wt5 at icann.org <mailto:gnso-newgtld-wg-wt5 at icann.org> >
Betreff: Re: [Gnso-newgtld-wg-wt5] Conference call: city names

We need to distinguish between two major groups of potential use cases that arise when there is an application for a string that (among other things) is a geographic term:

1.  The Geo Case:  The case where a new gTLD applicant want to operate the gTLD as a "geographic" TLD (e.g., .berlin, .nyc, .africa)

2.  The Non-Geo Case: The case where a new gTLD wants to operate the gTLD as something other than a geographic TLD -- a .brand, a generic gTLD, a restricted gTLD (e.g., .tata, .spa, .amazon, .patagonia)

For the Geo Case, it may be that there are few instances where support/non-objection letters caused problems in the 2012 round.  One "problem" instance is .africa.  One would have to look at the universe of cases to determine whether all the rest worked well or not.

For the Non-Geo Case, it is clear that there were multiple instances where support/non-objection letters or similar exercises of power did cause problems.  We can start with all four of the examples I've cited above.  I would be curious to know if there were Non-Geo Cases that didn't have problems.

I think we have to consider these use cases separately.  The considerations that apply when a TLD will be operated as a geo TLD (e.g., Roma for Romans) do not apply when the TLD will be operated for other purposes (e.g., .sandwich for a food-related TLD -- Sandwich, MA was incorporated in 1639 and named after Sandwich, England, which is obviously older).  Blending them together just obscures the issues.

Greg

On Wed, May 2, 2018 at 12:30 PM, Marita Moll <mmoll at ca.inter.net <mailto:mmoll at ca.inter.net> > wrote:

Yes, cities can have long history in older cultures -- wars were fought and people died over them.

In Canada, municipal governments are subdivisions of their province. While they have autonomy on most decisions, all by-laws passed are subject to change by the provincial government at any time. So cities exist at the pleasure of the provincial governments. 

Leaves one to wonder if the province could deny the city the right to it's TLD.:-( This is a pretty slippery slope......

Marita

On 5/2/2018 11:17 AM, Yrjö Länsipuro wrote:

Dear all,

Cities have been founded, incorporated and given various privileges - including their names - in the course of history by kings and emperors and other assorted authorities, and in my non-lawyer´s mind, documents attesting to those acts, scribbled on parchment or whatever, are the legal basis. More important, from end-users´ point of view, is the political ownership felt by the citizens.

For reference,  attached please find an excerpt of the founding document  of my home city Tampere/Tammerfors in 1779, signed by king Gustaf III.

Best,

Yrjö

  _____  

From: Gnso-newgtld-wg-wt5  <mailto:gnso-newgtld-wg-wt5-bounces at icann.org> <gnso-newgtld-wg-wt5-bounces at icann.org> on behalf of Alexander Schubert  <mailto:alexander at schubert.berlin> <alexander at schubert.berlin>
Sent: Wednesday, May 2, 2018 5:16 PM
To: gnso-newgtld-wg-wt5 at icann.org <mailto:gnso-newgtld-wg-wt5 at icann.org> 
Subject: Re: [Gnso-newgtld-wg-wt5] Conference call: city names 

Dear Greg,

You write: 
        “…..but a ‘first right’ based on a geographic name is troublesome on several levels. But one fundamental question jumps out -- what right is this first right based on?”

If we talk about sizeable (or otherwise “important”) cities:

Nobody has a “first right” obviously. Why should anybody. But if a string is (should be) poised to serve as identifier for a sizeable amount of people (e.g. larger cities) – I think we do not have to search for “international law”; it should be self-evident that such an infrastructure resource like a city-gTLD is NOT assigned lightly to “some entity” – but that the representatives of the city are looped in. There is morality and a “sense of common good” OUTSIDE of established law. At least in Good Old Europe. 

But I completely agree with you if we talk about “minor” geographical entities – such as a small stream or a hill. Or a tiny dwelling somewhere in the nowhere. Especially if there is an entity that is MUCH better known to the public (e.g. a well-known brand  vs. a small mountain) or if it is identical to a generic term: “.new” and the New River.

The big question is: How do we policy the line that separates the entities that deserve “protection” from the rest? A repository? Lists of any sort? Population size? Or maybe a panel that decides case by case (caution: Beauty contest alarm)? But having no protections at all is not going to work. To LOWER the already low bar is bonkers in my mind. I wish GAC would pay more attention – there are forces trying to take away DNS infrastructure from The People.

Thanks,

Alexander.berlin

From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Wednesday, May 02, 2018 7:42 AM
To: David Cake  <mailto:dave at davecake.net> <dave at davecake.net>
Cc: leonard obonyo via Gnso-newgtld-wg-wt5  <mailto:gnso-newgtld-wg-wt5 at icann.org> <gnso-newgtld-wg-wt5 at icann.org>
Subject: Re: [Gnso-newgtld-wg-wt5] Conference call: city names

I find myself generally in agreement with Liz Williams.  There are more nuances to unpack than I have time for, but a "first right" based on a geographic name is troublesome on several levels. But one fundamental question jumps out -- what right is this first right based on?  Is there a legal basis for this?  (Jorge tells us that his government would make a decision "based on law", so it would be useful to know what law we're talking about.)  Requiring a "letter of support or non-objection" is also troublesome and not just for the reasons Liz mentions.  (I hope we do not have to pore through each of the letters of support/non-objection from the first round to highlight the problems they cause, but if we are going to, this should be a job for the WG as a whole, not an assignment for Liz.)  I recognize that, as Jorge say, it "works well for governments."  Well, of course it does!  It completely favors governments, and was imposed by governments (i.e., the GAC).  The problem is that it doesn't work well for anyone else, and it is not well-grounded in the rule of law (unless we are thinking of something akin to the droit de seigneur, or perhaps the Divine Right of Kings).

I don't know if I'll be able to be on any part of the call starting shortly, since it is running from 1-2:30 am my time, and I don't do well on 4 hours of sleep....  If am not, please accept my apologies.

Greg

On Mon, Apr 30, 2018 at 11:48 PM, David Cake <dave at davecake.net <mailto:dave at davecake.net> > wrote:

Perth is not even unique within Australia, there is a small town in Tasmania. But the point about ambiguity remaining even if we restrict it to concepts like ‘capital’ is a very good one. 

David (resident of the Western Australian Perth)

On 30 Apr 2018, at 1:18 pm, Liz Williams <liz.williams at auda.org.au <mailto:liz.williams at auda.org.au> > wrote:

Hello everyone  

I wanted to start a new thread of conversation about city names ahead of our upcoming conference call.   We are being encouraged by our co-chairs to think about city names as TLDs. The first point is, perhaps, to recognise the “success” of some previous city TLDs including Berlin, Paris, NYC and so on.  Those applications went through very specific requirements for evaluation and, now, hopefully serve the requirements of local communities.  We should hope that, in any new round, the experiences of those cities will ease the way for future applications because we have learnt something about how and why applicants apply for place names (and I use the word place deliberately) as top level domain labels.

For our next round of policy recommendations I wanted to use an example which I think highlights the difficulties we face if we are prescriptive and limited in our analysis.

Most of us know that Perth is the capital city of Western Australia.  It is not the capital city of Australia as Canberra has that honour.  Relying on a “is the word a capital city” question is fraught with difficulty.   It is difficult because Perth, Scotland, has at a bare minimum had city status since the 12th century, far longer than Perth, Australia which also has an indigenous place name, its colonial name and a migrant demographic where the largest majority of Perth residents come from England.  Things are complicated by the existence of Perth in Canada which, in its own right, has some features of a capital and, at the very least, some important historic linkages.

And then we turn to the generic words which Jon Nevett highlighted in a previous post (Bath, Save, New) which are also place names.

That leads us to what can we usefully and objectively recommend as treatment of other names which are also linked to places and how those could be treated as top level domains.  As a starting point, my recommendation would be that we don’t have any special treatment for place names as TLDs and that applicants for those names would be evaluated against other business and technical criteria just like another application.  However, we might want to think about better ways of handling an objection.  Those objections, from whatever quarter, need to be treated in exactly the same way.  I don’t recommend “letters of support or non-objection”.  They are too subjective, fraught with movable political nuance and, in some cases, deeply sensitive geo-political facts (using Jerusalem as the example).

I look forward to hearing the views of others.

Liz

….
Dr Liz Williams | International Affairs
.au Domain Administration Ltd
M: +61 436 020 595 | +44 7824 877757
E: liz.williams at auda.org.au <mailto:liz.williams at auda.org.au>  www.auda.org.au <http://www.auda.org.au/> 

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