[Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
alexander at schubert.berlin
Thu May 24 09:54:36 UTC 2018
I agree: You just found proof that the “no-geo use” provision can cause IMMENSE harm – and the easiest way to mitigate the immense risks would be to eliminate it for cities as well (there is already no “no-geo use” provision for capital cities or ISO 3166 entries).
As a trade-off we could limit the government support requirement for cities to SIZEABLE entities!
Here a version:
We keep everything like it is: if someone applies for a string identical to a “city” and intends geo-use: Government support is required. If a brand applies and has no-geo use intent: they do not need a support letter. However: right now capital cities and national sub regions (ISO 3166 Alpha 2) are already EXCEMPTED from the no-geo use provision! Let’s add BIG cities as well. Big as in: e.g. minimum 500,000 inhabitants. That list is actually not very long – and there should be close to ZERO overlaps with generic terms – and only very few affected brands: these would have to go the extra step to get the letter of non-objection! Why are all capital cities protected (and dozens are really small) – but LARGE cities not? If a city has a Million people: that’s a Million people being affected when their city-name gets snagged away by a brand! Big cities are AT LEAST as important (and their citizens as much impacted) as capitals and national sub regions.
* If someone plans to run a gTLD as a city-gTLD they have to ALWAYS get the approval of the city. If there are several cities: then from all of them (make policies that both cities agree with). They term “city” needs a bit more definition though!
* If the applicant has no-geo use intent: they only need Government support if the city is larger than (e.g.) 500k people – otherwise not. (the exact cut-off limit needs to be discussed)
* Potential addition: If there is a “BIG” city (e.g. 500k upwards) and the other city with identical name is not; then only the big city’s support is required (as right now this is true with capital cities)! That even if the applicant applies for the small city of course!
* In other words: We would process BIG cities (500k upwards) exactly like capital cities – which kind of makes much sense.
The city problem would be solved that way; generic term based and brand applications would almost NOT be affected at all. But we still need an extra provision for “regions” like Patagonia. But that is independent from the city category.
From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces at icann.org] On Behalf Of Olga Cavalli
Sent: Thursday, May 24, 2018 2:04 AM
To: Greg Shatan <gregshatanipc at gmail.com>
Cc: gnso-newgtld-wg-wt5 at icann.org
Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
“.Patagonia: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today.”
the applicant did not make any previous contact with community / governments or any authority in Argentina or Chile.
Applicant just ignored the meaning that Patagonia as a name has for South America.
Applicant just ignored the fact that its a name which involves many communities, a large region in both countries and its the name of hundreds of different companies / brands already legally established in both countries under the national trade mark law, paying taxes, etc etc.
If the applicant would have contacted the interested parties before submitting the application, perhaps the story could have been different.
2018-05-23 2:06 GMT-03:00 Greg Shatan <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com> >:
Forgive me -- when you said "We need to skip this concept [intended use] from the debate", I thought you meant that we should all stop talking about it. It seemed clear enough at the time. Thanks for clarifying.
While you said you will not spend any more time on the topic, you did ask a question to the group, so it seems only fair to answer it, even if you will not respond.
You asked: "How such a concept of the “intended use” would have helped" in "some of the most contentious TLD of the last round (most of them unresolved till today)"
You mentioned 5 gTLD applications, but left it there. Looking at these five applications with the facts I have at hand, it seems clear that an "intended use" concept would have helped a great deal. (Apologies if any of the summaries are a bit simplified or not quite accurate.)
GCC: The applicant for .GCC had a geographic intended use but did not seek consent/non-objection from the relevant authorities (the Gulf Cooperation Council). According to the application ".GCC is an open Top Level Domain (TLD) created specifically to enhance and develop the provision of Internet services for users in the Gulf and Middle East region." GCC is the acronym for the Global Cooperation Council. The GAC Early Warning explained that "GCC is a known abbreviation for Gulf Cooperation Council. The GCC is a political and economic union of the Arab states bordering the Arabian Gulf, namely Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and United Arab Emirates." The GCC then filed a Legal Rights Objection, which was subsequently terminated. If an intended use concept had been in place, the applicant would have known that it needed to approach the Gulf Cooperation Council for consent/non-objection.
.Africa: Here, two applicants both had a geographic intended use and both claimed to have consent from the relevant authorities. It's not clear that an intended use concept would have mattered here. However it's fair to say that if there had been a better-developed process for consent/non-objection when the intended use warranted it, perhaps the difficulties would have been avoided.
.Spa: There were 3 applications, none of which had a geographic intended use. One application described its intended use in its application like this: "The .SPA TLD will be attractive to a very broad and diverse group of registrants. There are literally hundreds of different uses of the word SPA, broadly including day spas, dental spas, garden spas, medical spas, bath spas, hot tubs, soda fountains, etc., as well as a corporate identifier in certain jurisdictions. We will operate the .SPA TLD in an inclusive manner, and in the best interests of entities in all jurisdictions and in a legitimate and secure manner." The second stated: "The mission of the .SPA top-level domain is to offer owners of spas and health resorts a short and descriptive top-level domain under which to register good, usable second-level domains at an affordable price. The .SPA gTLD will be useful for spas, resorts, salons, health retreats and other businesses that group themselves under the “spa” name. Consumers searching for spas will use the .SPA gTLD to help differentiate spas from other businesses offering non-spa services." The third said: The .spa TLD aspires to be the domain of choice for the global spa community. For the spa industry much of the novelty and value will be in the name itself. It is well understood that words evoke feelings and emotions. This technique and knowledge is popularized in advertising and branding. Looking at the existing TLDs, it is hard to imagine any of them being able to evoke the types of feeling necessary for a successful spa. The area of specialty for the Registry is in the spa community and to provide a namespace based on a name that evokes feelings of relaxation, traquillity,rejuvenation that are complementary to spas around the world. Nonetheless, Belgium objected, based on the city of Spa, Belgium (pop. 10,345). ICANN ultimately rejected the objection. If an intended use concept had been in place, Belgium would have understood there was no basis for their objection, and would not have proceeded with the objection. Applications would have proceeded more quickly toward delegation.
.Amazon: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. Because there were no clear rules, an extended set of ad hoc processes have kept this application from proceeding. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today.
.Patagonia: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today.
In each of these cases, an intended use concept would have made it much more clear when a letter of consent/non-objection was required, and when it was not. Also, it would have been much more clear when there were grounds for an objection and when there were not. The lack of such a clear distinction is at the root of the troubles in each of these applications.
In sum, the intended use concept would have helped a great deal in each of these cases. As such, it is most clearly "a path that deserves to be still explored now that we are looking for future proof remedies to known problems."
Thank you for the opportunity to explain this, Giacomo. I hope you will explain in a detailed fashion how you concluded that the intended use concept did not work in the previous gTLD round, including how this "proved" not to work in the previous round. I look forward to your "proof."
On Sat, May 19, 2018 at 4:51 AM, Mazzone, Giacomo <mazzone at ebu.ch <mailto:mazzone at ebu.ch> > wrote:
Just one de
I never said or wrote to stop to talk about "intended use". Such a prescription would be against my ethic principles of open and fair discussion.
I simply said that this concept has proved in the previous gTLD's round, not to work. So (in my opinion -and not only in mine) it's not a path that deserve to be still explored now that we are looking for future proof remedies to known problems.
Having said that, if you want to spend more time on it, you're perfectly free to do so. I will not. But will be not me to forbid anyone to do so.
I wish you all a restful week end.
De: Greg Shatan
Envoyé: samedi, 19 mai 2018 07:43
À: Maureen Hilyard
Cc: gnso-newgtld-wg-wt5 at icann.org <mailto:gnso-newgtld-wg-wt5 at icann.org>
Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Well, the idea that there is an "owner" of a resource such as a TLD before it has even been applied for is interesting, though peculiar. But how would one decide which theoretical applicant is that "owner"?
Trademarks evoke positive associations, often very significant ones. Indeed, one of the essential elements of a trademark is that possesses "secondary meaning," which is the association between the mark and the attributes of the source or origin of the products and services. This secondary meaning (or "goodwill") in turn is a key component of the value and strength of the mark. Some marks are worth billions of dollars, are registered and used in dozens or even well over a hundred countries, have long histories, and are known and beloved by millions, if not billions of people. As a matter of law and fact, this makes trademarks assets and rights that are "owned" and controlled by particular parties.
It's true of course that geographic names can evoke positive associations of varying strength and significance. Others evoke negative associations, and other evoke no significant associations at all. While it might make some sense to call each governments an "owner" of the term when used to identify the place, this "ownership" is largely an analogy and not a fact, particularly by contrast with trademarks, for which ownership is of the essence, and protected by widely accepted treaties, such as the Paris Convention, the Madrid Convention and the GATT, among many others.
For that matter, words used in a generic fashion may evoke positive associations (like "raindrops on roses and whiskers on kittens ... doorbells and sleigh bells," etc.). However there is no ownership right or control associated with words used in a generic fashion.
Many terms may fall into all three categories (and more). There's no particular test to determine whether a term will be more evocative of a place or a brand or a thing. There's no test for which one might predominate in the abstract. Of course, context will help greatly. But in most cases, a brand will not be "leveraging the positive connotations of a city name" where they share the term -- rather it will be a mere coincidence, an irrelevancy.
Depending on circumstances, it's just as valid to question whether a brand would want its goodwill to be associated with some city or town. In many other cases, this could be entirely irrelevant, as there would be no association between one usage or another. For example, a .rock TLD marketed to lovers of rock music or used as a brand by Dwayne "The Rock" Johnson would not be associated with the village of Rock. A .bath TLD intended for use in connection with bath products and experiences is not going to be associated with Bath, England.
In any case, it's inappropriate and without basis to decide that one type of use reigns supreme over all others in all cases. We could consider some sort of evaluation process to determine if a given trademark is more significant than a given place, in which case an applicant seeking to use the string for the place would need to seek a letter of consent or non-objection from the brand. Or we could decide that every geographic use needs to seek consent or non-objection from every brand owner using that term as their brand -- or maybe we just give that right to equal numbers of brands and marks, based on reaching a certain level of significance (population, economic value, etc.).
It's far simpler (and fairer) to favor the applicant as a general matter. After all, they are the one participating in the TLD domain name system. If Delta Airlines applies for .delta, and decides it might be worthwhile for financial or public interest reasons to offer SLDs to Vietnam for mekong.delta and Mississippi for mississippi.delta, that's fine, but it should be the applicant's decision, not something that is forced on them by a system slanted to favor geo-centric interests.
A system that determines that there is a single owner of a unique string in which many have an interest for different reasons is unfair and unworkable. It would be even more unfair and unworkable to decide the "winner" in advance, merely based on their type of interest. I doubt we will come anywhere near consensus on such a system. Unlike Giacomo, I won't instruct you to stop talking about it -- that's not the way this process works. But we would be better served by looking at outcomes that better balance varying interests while better keeping in mind the key values f innovation and competition.
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