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

Mike Rodenbaugh mike at rodenbaugh.com
Thu May 3 18:50:09 UTC 2018


Maybe Staff can help compile any such laws and cases related to domains?
We should deal with concrete examples, as I have given re 4 TLD
applications from the last round.

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1.415.738.8087
http://rodenbaugh.com

On Thu, May 3, 2018 at 10:32 AM, <Jorge.Cancio at bakom.admin.ch> wrote:

> Dear Mike
> There are similar laws in other countries. For Switzerland you can look it
> up online quite easily (in various languages). There is case-law but I
> guess the court decisions will be in German and French.
> Besides, limits to register solely city names and other geographic terms
> as such as trademarks or business names are also common...
> On the other hand, as said before, rights on brands are limited to
> specific categories of products and services...
> In the end, as said, you have different interests converging on a single
> string, where in our opinion the public interest is paramount.
> Best
> Jorge
>
>
>
> ________________________________
>
> Von: Mike Rodenbaugh <mike at rodenbaugh.com>
> Datum: 3. Mai 2018 um 19:26:08 MESZ
> An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>
> Cc: Gregory S. Shatan <gregshatanipc at gmail.com>, mmoll at ca.inter.net <
> mmoll at ca.inter.net>, gnso-newgtld-wg-wt5 at icann.org <
> gnso-newgtld-wg-wt5 at icann.org>
> Betreff: Re: [Gnso-newgtld-wg-wt5] Conference call: city names
>
> I would like to see the text of such laws, and any cases that apply them
> to domain names.  I guess there might be one in France too, but I haven't
> dug into the particulars of the French legal proceedings re France.com.
>
> Mike Rodenbaugh
> RODENBAUGH LAW
> tel/fax:  +1.415.738.8087
> http://rodenbaugh.com
>
> On Thu, May 3, 2018 at 10:19 AM, <Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch>> wrote:
> Dear Mike
> I mentioned some, eg in Switzerland cities have rights to protect their
> names under the civil code (art. 29), and provisions prevent the
> registration of business names and trademarks that solely consist of city
> names.
> best
> Jorge
>
>
>
> ________________________________
>
> Von: Mike Rodenbaugh <mike at rodenbaugh.com<mailto:mike at rodenbaugh.com>>
> Datum: 3. Mai 2018 um 19:06:27 MESZ
> An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch>>
> Cc: Gregory S. Shatan <gregshatanipc at gmail.com<mailto:
> gregshatanipc at gmail.com>>, mmoll at ca.inter.net<mailto:mmoll at ca.inter.net> <
> mmoll at ca.inter.net<mailto:mmoll at ca.inter.net>>,
> gnso-newgtld-wg-wt5 at icann.org<mailto:gnso-newgtld-wg-wt5 at icann.org> <
> 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
>
> Jorge, what law provides for governments to claim superior rights to
> geographic (or any other) domain names?  I am not aware of any, so am eager
> to be enlightened if they exist.
>
> Thanks,
> Mike
>
> Mike Rodenbaugh
> RODENBAUGH LAW
> tel/fax:  +1.415.738.8087
> http://rodenbaugh.com
>
> On Thu, May 3, 2018 at 2:49 AM, <Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch><mailto:Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch>>> wrote:
> Dear Mike
>
> Thanks for your input.
>
> In the end we have different bodies, entities etc. holding interests on
> one single string. In our view (Swiss perspective), public interest
> provides for clear limits to private monopolization over geographic names
> such as city names – this is reflected in law.
>
> Best regards
>
> Jorge
>
>
> Von: Mike Rodenbaugh [mailto:mike at rodenbaugh.com<mailto:
> mike at rodenbaugh.com><mailto:mike at rodenbaugh.com<mailto:mike at rodenbaugh.com
> >>]
> Gesendet: Donnerstag, 3. Mai 2018 09:49
> An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch><mailto:Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch>>>
> Cc: Gregory S. Shatan <gregshatanipc at gmail.com<mailto:
> gregshatanipc at gmail.com><mailto:gregshatanipc at gmail.com<mailto:
> gregshatanipc at gmail.com>>>; mmoll at ca.inter.net<mailto:mmoll at ca.inter.net
> ><mailto:mmoll at ca.inter.net<mailto:mmoll at ca.inter.net>>;
> gnso-newgtld-wg-wt5 at icann.org<mailto:gnso-newgtld-wg-wt5 at icann.org
> ><mailto:gnso-newgtld-wg-wt5 at icann.org<mailto:gnso-newgtld-wg-wt5@
> icann.org>>
> Betreff: 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><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><mailto: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><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><mailto:
> 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><mailto: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><mailto: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
>
>
>
> [cid:image001.png at 01D3E2D4.C11E9F30]
>
>
>
>
>
> ________________________________
> From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces at icann.org<mailto:
> gnso-newgtld-wg-wt5-bounces at icann.org>><mailto:gnso-newgtld-wg-wt5-
> bounces at icann.org<mailto:gnso-newgtld-wg-wt5-bounces at icann.org>> on
> behalf of Alexander Schubert <alexander at schubert.berlin><mailto:
> alexander at schubert.berlin<mailto: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
> ><mailto:gnso-newgtld-wg-wt5 at icann.org<mailto:gnso-newgtld-wg-wt5@
> 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
> <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 <dave at davecake.net<mailto:dave at davecake.net>><mailto:dave@
> davecake.net<mailto:dave at davecake.net>>
> Cc: leonard obonyo via Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5 at icann.org
> <mailto:gnso-newgtld-wg-wt5 at icann.org>><mailto: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
>
>
>
> 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><mailto: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><mailto: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><mailto:
> liz.williams at auda.org.au<mailto:liz.williams at auda.org.au>> www.auda.org.au
> <http://www.auda.org.au><http://www.auda.org.au/>
>
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