[Spec13-request] Comment on Lifestyle Domain Holdings, Inc., Specification 13 Application

[Johannes Lenz-Hawliczek | Hotel Top-Level-Domain Sarl]

We are commenting on the .Brand TLD Designation Application by Lifestyle Domain Holdings, Inc., a wholly-owned subsidiary of Scripps Networks Interactive, Inc., for the .FOOD gTLD, dated September 24, 2015. 

We believe that this request must not be approved and the application has to be deferred to the next gTLD round.

1.	ICANN rules do not allow an exclusive use of .FOOD

An applicant who wants to operate a TLD under Specification 13 must show that the gTLD matches his trademark and that the string is not a generic word, as clearly defined by ICANN:

“… a string consisting of a word or term that denominates or describes a general class of goods, services, groups, organizations or things, as opposed to distinguishing a specific brand of goods, services, groups, organizations or things from those of others.”

Specification 13 also explicitly defines that a TLD applying for .BRAND Designation must not be “a Generic String TLD (as defined in Specification 11)”.

Both ICANN and the GAC have very clearly articulated that a generic string will not be allowed to be operated as an exclusive .BRAND gTLD. Any applicant for a generic word has to either withdraw his plans for exclusive use of the TLD or withdraw the application. A substantial number of affected and already approved gTLDs amended their application accordingly.

Furthermore, an approval of a Specification 13 application would qualify as a violation of the Public Interest Commitments (PIC) in Specification 11, clauses 3.c and 3.d:

“c. Registry Operator will operate the TLD in a transparent manner consistent with general principles of openness and non-discrimination by establishing, publishing and adhering to clear registration policies.

d. Registry Operator of a “Generic String” TLD may not impose eligibility criteria for registering names in the TLD that limit registrations exclusively to a single person or entity and/or that person’s or entity’s “Affiliates” (as defined in Section 2.9(c) of the Registry Agreement). “Generic String” means a string consisting of a word or term that denominates or describes a general class of goods, services, groups, organizations or things, as opposed to distinguishing a specific brand of goods, services, groups, organizations or things from those of others.”

By granting the request that Scripps Networks Interactive, Inc. and its Affiliates may become sole registrants in the .FOOD gTLD, ICANN would act in violation of its contract and the agreement with the GAC.

2.	A potential change from exclusive to a non-exclusive use 

Even if the applicant choose to file a change request for a non-exclusive use of .FOOD, this would constitute a clear-cut material change. For any material change to an application, such as amending an application from exclusive use to non-exclusive use, ICANN reserves the right to re-evaluate the application, according to the Applicant Guidebook, version 2012-06-04, section 1.2.7.

The practical implications of a change of status of .FOOD from exclusive to non-exclusive would be significant in financial terms, since responses to questions 46 to 50 would be completely misleading, as the costs of operations of a exclusive TLD would be substantially less than the costs of operation of an non-exclusive TLD and thus all responses to the financial questions would be flawed and the Continuing Operations Instrument grossly inaccurate which clearly justifies a request for a re-evaluation by ICANN.

Regards,
Katrin Ohlmer, Johannes Lenz-Hawliczek
Managing Directors, Hotel Top-Level-Domain Sárl
Luxembourg, 16. October 2015