[CPWG] To convey, not to judge

Thu May 7 17:59:23 UTC 2020

Just a quick comment, to provide a historic perspective.
“Traditional” trade marks are governed by a systems that have jurisdiction at the core - while the DNS is global. Also, most trade mark systems use the concept of “class” to identify categories, so that trade marks are applied for a specific class of products. This allows, for instance, to make a distinction between Apple - the fruit, Apple - the recording company, Apple - the computer, and so on. The example that has been made from the beginning of these discussions in the Internet community is that if multiple companies apply for .apple, each of them belonging to a different class, the traditional way goes in tilt.
Cheers,
R.

On 07.05.2020, at 19:22, Bill Jouris via CPWG <cpwg at icann.org<mailto:cpwg at icann.org>> wrote:

It really does seem that what we are trying to do is reinvent the wheel.  There is a long established system for dealing with trademarks.  It includes criteria for what names can be fenced off from other users and what cannot, and for dealing with conflicts.  Was there a rationale for ignoring that, and trying to invent our own system for doing the same thing with domain names?

Bill Jouris

On Thursday, May 7, 2020, 12:26:15 AM PDT, Evan Leibovitch <evan at telly.org<mailto:evan at telly.org>> wrote:

On Wed, 6 May 2020 at 17:24, John McCormac <jmcc at hosterstats.com<mailto:jmcc at hosterstats.com>> wrote:

If ALAC doesn't speak up then who will?

The California AG, fortunately. At least so far.

> almost every dollar spent on ALAC attending ICANN meetings for a decent
> R&D budget and the ability to do global surveys. How many people here

And produce the a kind of CCT product filled with great aspirations and good intentions?

I was involved in the prep for the CCT-RT. It was a sham from the beginning, with industry lobbyists pushing to include questions to point to a desired predetermined set of answers. Anything else was argued to be out of scope.

I was fighting with the GNSO until the day I dropped out to actually put some useful questions in that survey, such as whether the public trusted "memorable" domain names as much as search engines to find what it wanted on the 'Net.

Does a proliferation of TLDs mean that there's more to choose from? Yes, but it's a dumb question designed to produce an obvious answer. ICANN's vested interest have proclaimed the very creation of new TLDs as an innovation of which we should all be proud. What a crock.

There was no expertise on measuring web usage or other important industry metrics on that team.

That's why I said that ALAC needs people skilled at this kind of analysis. This skillset may not be readily available from among ALAC volunteers, but that's what support staff (that is truly there to support ALAC rather than to assert ICANN culture on it) is there for.

As for global surveys, they sound nice and very impressive. The problem is that the domain name market has a small global market and many country level markets. In many of those country level markets the gTLDs
are only a second choice for new domain name registrants.

Agreed.

How would this R&D and these global surveys be any different

The resource shift I ask for above assumes that ALAC would be the steward of the R&D and the surveys, that it would be able to set the questions and guide the data analysis independently of ICANN's wishes. I believe that ICANN management would be quite fearful of a the public's answer to properly-posed questions about public trust in Internet domains and how they are governed. But if ALAC is to do its job these issues need to be known.

>   * The practise of domain hoarding and speculation (also illegal under
>     international trademark regime)

How can this "international trademark regime" decide what is legal and
what is illegal? Are they like the Spanish Inquisition?

What I mean by this is that the global trademark system generally abides by the "use it or lose it" rule. Asserting ownership of a trademark is not sufficient it to qualify for protection, you need to retain a history of its use. Otherwise a challenge can be successful. Also; you have outright ownership of a trademark and can but and sell at will as an asset. Renewal fees are either every 10 years or five based on whether you want it internationally enforced.

Domains are the opposite. Even if you don't use them you can hold on so long as you pay the annual fee. And you don't own your domain because if you don't pay your rent it just goes back in the pool.

This is a highly problematic issue in that a lot of the assumptions about what is "hoarded" or speculated is wrong. The logic generally seems to be that because someone registered a domain name first and the domain name has no active website, everyone else who wants that domain name thinks that the registrant is hoarding it.

Again, this differs from trademark practice, where is rationale is irrelevant. If a name is asserted as a trademark but not put into use (or under provable development), it can be successfully challenged by other would-be users. You can't just collect a stable of undeveloped trademarks the way you can for domains. If you have a trademark that you want to keep but aren't using right now, you have to apply for an explicit exemption.

I mention these differences because, to me, ICANN's approach to domain names is a sideways attempt to redo trademark practice in that it provides a way for people to own unique identifiers. The difference, though, is that trademarks were invented to protect consumers from confusion, while domain name allocation and maintenance rules exist to maximize revenue for the domain industry. And we have seen some strange situations when the two realms collide. The IPC in the GNSO exists to protect the rights of trademark holders (as best they can), but nobody is doing the necessary job of protecting the name-protection from consumers' PoV. In the fight over .amazon I argued in favour of the bookstore over the governments, which is an easy position to take when considering the end-users PoV and seeing it like a trademark issue.
Maybe I'm really getting off-track here, But in other ways I'm helping to demonstrate the public-intrerest areas where ALAC should be focusing in the face of So Many Distractions being thrown at it.

In the last fifteen years or so, registrars have been parking undeveloped domain names on PPC services. So if someone sees a domain name on PPC, the assumption is often that it is "hoarded". The reality is that the majority of domain names in both gTLDs and ccTLDs have no developed websites. The first year renewal rate for .COM is approximately 57%.

That suggests to me that more than four in ten .COM domains either belonged to business ideas that didn't survive their first year, or were considered unworthy of being maintained in a domaining portfolio. I would also surmise that some significant portion of the 57% are sites without existing commercial use but were deemed worthy to be maintained for speculative purposes.

The reality, as demonstated by the 01 May 2020 stats for .COM is that 5,888,117 domain names (approximately 4% of .COM) are on major auction/sales sites.

I don't really care about that. I've spent quite a lot of effort over the last few years helping colleagues find a suitable domain name. Almost all the time their first five choices (or so) point to a PPC that gives instructions on how to buy the name. None of them have ever pointed to an auction site.

Regulation? What people inside the ICANN bubble don't realise

I go under the assumption that the industry is smarter than it lets on in public, promoting all these garbage TLDs but knowing the numbers and realizing the reality.

Now... people inside the bubble but outside the industry -- like ALAC -- might be taken in by the hype but I sure hope not. What astounds me is that knowing how poorly the last cohort of TLDs has done, the industry pushes for more expansion. Truly astounding.

is that apart from the USA where the .COM is the de facto ccTLD the domain name the market is shifting away from gTLDs to ccTLDs.

In my experience, the public doesn't know the difference. There is no awareness that the way to report abuse is different for .com than .co, even though the latter is marketed as a drop-in alternative ("if you didn't get your first choice in .COM but don't know any better"). When I tell people the link between bit.ly<http://bit.ly/> and Libya most people are genuinely astonished.

Whose job is it to educate the public -- both people buying their first domain or end-users -- about these distinctions?

In many countries where there is a strong ccTLD, growth in the gTLDs has plateaued with the main volume of new registrations being in the local ccTLD.

Been pretty simple to me. Entities that want to be seen as global go for .com or .org, else stay national with a ccTLD.

This isn't a kind of Balkanisation of gTLDs and ccTLDs. It is unexpected obselescence for some gTLDs.

Unexpected by who? ;-)

The CA AG intervention was yet another example of the ICANN bubble being burst by external action. In some respects, ICANN only evolves only when there is external intervention. Even the first new gTLDs in the early 2000s were a response to a perceived "all of the good names are gone" meme from the late 1990s. In early 2000, the DotCOM bubble burst and the demand for some of these first new gTLDs disappeared as million of .COM and .NET domain names flooded back into the market.

It's still my experience that all the good ones are gone. What was given back might have been the crap that came out of algorithms and typosquatting etc Many newcomers these days, in my experience, are using fudges such as hyphenated names in .com, and most refuse to even approach the name-squatters on princiiple.

> But look elsewhere in this list and you'll find none of those things
> being the focus our work. Instead good people are caught up in endless
> development processes about development processes, success metrics etc.

That does make it sound like a kind of middle-management Hell.

Unfortunately, some like it that way because of ALAC's political design. I have known many ALAC leaders who achieved their positions through savvy political skills rather than subject-matter expertise. Once onboard they mask their lack of expertise (or lack of interest) by focusing on process to the exclusion of all else.

But the real problem, when it comes to domain names and their markets, is that if you can't define what you are trying to measure, then you won't know whether it is a success or failure. That's one of the persistent weaknesses of ALAC and ICANN in that both the definitions and the data are not readily available.

Agreed, which is why independent mining and analysis of data is IMO something ALAC needs far more than its mock-UN bureaucratic trappings.

Cheers,

--
Evan Leibovitch,
Toronto Canada
@evanleibovitch or @el56
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