New Generic Top-Level Domain (gTLD) Subsequent Procedures, and the new cross-community Work Track 5 on geographic names

Introduction and background
The initiation of this group is welcome; it addresses an issue that has been alive in ICANN for many years: who has prior rights in geographic names? It is understood that this group will work on this question exclusively with respect to the Top Level, that is geographic names as, eventually, new gTLDs. Naturally, principles and practice at the top level will influence what happens at the second and eventually the third level, as has been the case for ccTLDs. 

I have asked the ICANN staff to locate and guide us to all previous documents and decisions that relate to this topic.

Geographic names at the Top Level

As I understand it, this designation is deliberately inclusive. It is not only country names, as in ISO 3166. It includes regions (i.e. Groups of countries e.g. .EU, .Asia, .Africa,…), subregions of nations (e.g. .cat, .scot, …), geographic indications and other locations. Note that ISO 3166 includes many locations that are not countries, or even jurisdictions, as such; 

Some geographic names are protected under applicable law in the corresponding countries and regions. However, many such names are not legally protected nationally or internationally as are, for example, trademarks. But most governments and the general public in many countries regard their ownership of the names of their geographies as self evident, in the public domain, and inalienable. In the past, I believe that de facto agreements have been reached in many cases of unambiguous duplicate names arising from historical colonial settlement. However, in the digital age, and particularly in the DNS, it has become more easy to adopt, indeed expropriate, geographic names without the knowledge or authorisation of the population and the governmental authorities in the places concerned. Practice in the DNS to date at the second level should not be taken as a precedent in the context of new gTLDs.

This phenomenon will have to be regulated and administered in a way that protects historically acquired rights. It will not be acceptable internationally for a simple DNS registration, or application to ICANN for a TLD to override centuries of practice, exercising ancient rights to the use of geographic terms which are permanently in the public domain. A fortiori, names that are already protected in applicable law should be respected.

General principles:

1.	The ICANN community should recognise the widespread existence of acquired rights to geographic names, broadly defined. These should not be open to registration as TLDs without the explicit agreement of the relevant authorities. ICANN will have to take care that the authorities concerned are effectively reflecting the interests and opinions of the general public concerned.

2.	In the foreseeable future, most new TLDs with geographic names may be IDNs. That is, either names in non-EN latin scripts or in the vast potential range of non-latin scripts.

ICANN should develop consistent principles for the adoption or rejection of applications whether the application is in EN-latin script, non-EN latin script or in any non-latin IDN script. Forum shopping among different categories of scripts should be prevented. 

3.	Commercialisation of TLDs expressing geographic concepts should be controlled. The benefits arising from these Registries should accrue primarily to the populations residing in the region or location concerned. 

This will not be an easy objective to achieve, globally, because it will depend on local law, administration and practice. However, at ICANN level, two preconditions would seem to be appropriate in order to facilitate the operation of these Registries in the public interest, and to discourage spurious and speculative applications:

-	The Registry should be incorporated in the jurisdiction of the geographic name 	concerned;

-	The Registry should be operated on a not-for-profit basis in the public interest.
	
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The above outline of ICANN's registration policy for geographic names in new gTLDs is offered as a basis for discussion and consensus, initially among the At Large participants and ALAC.

CW

Jávea, 4 October 2017