Evan, About your comment regarding our .nyc TLD objection: /In the case of .nyc we have a situation in which the city government has made a clear choice according to ICANN guidelines. While I am extreley sympathetic to Tom' s original vision for .nyc and far prefer it to that in the existing application, it is hard to imagine an objection that could avoid forcing ICANN to get involved in New York's municipal politics. Objectively, a democratically-elected NY city council would be very difficult to second-guess as to determining relative community support of the two approaches./ First: I am extremely happy to hear of your support of the vision of a community TLD that we've advanced. Second: When you say "/it is hard to imagine an objection that could avoid forcing ICANN to get involved in New York's municipal politics/" I share your concern. However, (see my third point...) Third: Your presumption that our /democratically-elected NY city council/ had a hand in developing or approving the city's .nyc application is inaccurate. The city council did not vote on the agreement. The city council did not hold a hearing on the agreement under discussion. The then Commissioner of the city's Department of Information and Technology and Telecommunications, Carole Post, signed the agreement with NeuStar, with delegated authority to sign on behalf of the city (I presume). A city grassroots governance body recently passed a resolution requesting closer engagement of the community in the development of the .nyc TLD. Speaking about the long promised but as of yet unseen Community Advisory Board (CAB), the Community Board recommended on : * that the .nyc TLD's Community Advisory Board take a careful view of this most important resource, and that it be provided with adequate resources to assure its effective operation. * that Community Boards, civic organizations, not-for-profit entities, and local small businesses be represented on the Community Advisory Board. * that domain names that support civic life should be thoughtfully reserved for use by the city's neighborhoods, community organizations, not-for-profit institutions, and local small businesses. * that civic not-for-profit organizations, and small businesses be provided with adequate notification of domain name selection periods, and the opportunity to select a good domain name. * that the city carefully coordinate the development of its Top Level Domain with the other cities that have applied for their TLDs, seeking opportunities for standardization and the sharing of good TLD governance practices. * that a plan be formulated to assure that the .nyc TLD is a sustainable resource: that domain names are recycled so they are available to New Yorkers today and tomorrow. The Community Board is appointed jointly by the elected city council members and the elected borough presidents. (Name Confusion Note: There's the promised Community Advisory Board (CAB) that's to engage specifically with the .nyc TLD. The Community Boards, one of which passed the above resolution, and the 2001 Internet Empowerment Resolution which first surfaced a civic TLD, were originally called Community Planning Boards, but the "Planning" Boards name was shortened to Community Board to differentiate them from the Community School Boards. Ouch!) But to the point at hand, I don't believe the possibly confounding politics of the matter are necessarily in question. Rather, its the merits of the four points in the guidelines that must be proved. And I think a review of our submission (https://community.icann.org/display/newgtldrg/.nyc_OG?focusedCommentId=40173...) shows that there is a community is offering a substantial objection. Finally, note that the application before ICANN is for .nyc (a regional airport code) and not .newyorkcity or .newyork. Sincerely, Tom Lowenhaupt P.S. Your email reminded me that the matter is well beyond the capacity of my mini brain and I've reached out to see if this is within the remit of our pro bono public interest attorneys. On 1/28/2013 4:03 PM, Evan Leibovitch wrote:
On 28 January 2013 15:15, Eric Brunner-Williams <ebw@abenaki.wabanaki.net>wrote:
On 1/26/13 1:41 PM, Eric Brunner-Williams wrote:
it is my considered view that each of the four strings: {amazon, patagonia, nyc, and health} should be allocated only if applicants can be found which meet objective, and feasible criteria.
For better or worse that' s not how the process works. Applications don't have to prove legitimacy, by an objection process exists to address those considered illegitimate on specific grounds. All those not being found illegitimate are accepted. To act otherwise at this point, contrary to the existing procedures, is to invite lawsuits.
There is no political entity called "Amazon", though there are many called "Amazonas". There is already a process in ICANN to deny names similar to political entities (countries, provinces, cities, states) without approval. If ".amazon" passes that then a community-based objection -- coming from people OF that area, not North American proxies, need to object.
In the case of Patagonia, that is a region and not a political entity name. It, like Amazon, is also the name of a multinational commercial entity. It will be significant, at least to me, to see the history of objections launched against these domain names at the second level.
In the case of .nyc we have a situation in which the city government has made a clear choice according to ICANN guidelines. While I am extreley symathetic to Tom' s original vision for .nyc and far prefer it to that in the existing application, it is hard to imagine an objection that could avoid forcing ICANN to get involved in New York's municipal politics. Objectively, a democratically-elected NY city council would be very difficult to second-guess as to determining relative community support of the two approaches.
And as for .health, I personally see it as no different from any other non-brand dictionary word being applied for as a TLD. Whether this particular TLD survives or fails will depend on its ability to earn and maintain public trust, or if it is just seen as no better than dot-com as a source of health-related materials. I see no grounds for objection on that name. If it turns out to be useless it won' t be used.
- Evan
it is my considered view that each of the four strings: {amazon, patagonia, nyc, and health} should be allocated only if applicants can be found which meet objective, and feasible criteria. To one or all of the staff managed sites:
https://community.icann.org/display/newgtldrg/{.amazon_OG,.patagonia_OG,.nyc_OG , and .health_OG}
Lacking write permissions to each of these URLs, I've not added my responses, but trust that you will do so before the response period expires. If you would like I can send you text with conventional capitalization.
While looking for a means to add comments to those already present I came across one I thought worthy of note, I reproduce it in its entirety, without reference to its author, here:
I am ambivalent about the objections to both .amazon and .patagonia.
I understand and acknowledge the claims of the communities to the term, what is at issue is whether they have exclusive claim, I note that the proponents did not see fit to attempt their own geoTLD applications, and there has been no attempt to challenge the current registration of patagonia.com. Had there been a conflict between a geoTLD application and commercial application for the same string, I would actively support the geographic one. But in the absense of a desire by the residents of the patagonia region to request their own TLD I am dis-inclined to impede the application.
First, I suspect the author of this comment may err as to the actual issue.
I doubt that the standing of At Large requires a determination of whether or not an applicant, which may be identified by string contention, not merely exact or partial string match, possibly in another script than the instant application, or an objector, has "exclusive claim" to the string.
Second, I suspect the author of this comment may err as to the necessity of a party bringing an objection having, as a predicate condition, submitted any application, let alone an application for the string associated with the instant application.
Third, I suspect the author of this comment may err as to the necessity of exhaustion of remedies for a legacy registration, under the independent rules for legacy namespaces, adopted when the Corporation was formed and subsequently modified, but never extended to new namespace applications through the numerous drafts of the Applicant's Guidebook, for a registration made a half decade before the Corporation was formed.
Fourth, I suspect the author of this comment may err as to the necessity of any of predicate act by any third party as a precondition for At Large to exercise its standing to object to any application.
With respect I suggest the better course of analysis is to review the record for the grounds for objections, and the standings required of the objectors, here the attempted appropriation of unmistakable regional identifiers by managers of brands intentionally exploited remotely to the identified region, to enhance trademarked merchandise profit margins, with no identifiable benefit to the name originating region, before waiving the standing of At Large based upon some other rational for non-objection.
Independent of the above, I suspect that the Corporation's "outreach" expenditures relative to the 2012 gTLD application process in each region is substantially less than its expenditures in the North American region (domicile of record of the .patagonia applicant) or the European region (domicile of record of the .amazon applicant).
Also independent of the above, the purpose of trademark protection is the prevention of confusion in the market. The claim that absent the contract to operate a regional identifier as a private commercial mark confusion exists in the market would be difficult to substantiate. However, the confusion in the market resulting in the grant to a private commercial use of a regional identifier is not difficult to anticipate.
The first of these two independent observations speaks to the duty of an agency of government (United States), or its delegated agency actor, under tha Administrative Procedures Act of 1946, to make effective, not fictional, notice and comment, prior to rule making. The second of these two independent observations speaks to the duty of a market actor cognizant of trademarks to avoid acts likely to increase confusion in the market.
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