Giving large corporations “generic gated” top-level domain names to operate as private realms is always a bad idea

No company can own the generic word of the product it sells. We would find it absurd for a single airline to claim exclusive use of the word “airline” or for a broadband service to try to prevent its rivals from using the word “broadband”. Until this year, it seemed established that Internet top-level domain names (like .com, .org, etc.) would follow the same obvious rule. Alas, I CAN (the Californian nonprofit organization that governs the global domain name system) seems determined to steer domains in a more absurd direction by revisiting the thoroughly discredited concept of “closed generics.”

In a nutshell, closed generics are top-level domain names using common words, like “.car”. But unlike other TLDs like “.com”, a closed generic TLD is under the control of a single company, and that company controls everything domain names within the TLD. It’s a terrible idea, for all the same reasons, it has already failed twice. And for one more reason: advocates of free competition and free speech shouldn’t have to fight the same battle a third time.

Closed Generics Rejected Then Resurrected

The context for this struggle is the “New Generic Top-Level Domains” process, which expanded the list of “gTLDs” from the original six (.com, .net, .org, .edu, .gov, and .mil) to the approximately 1,400 in use today, such as .hot, .house, and .horse. In 2012, during the first round of applications to operate new gTLDs, some companies requested complete and exclusive control over domains such as .baby, .blog, .book, .cars, .food, .mail, .movie , .music, . news, .shop and .video, as well as similar terms written in Chinese characters. Most of the candidates were among the biggest players in their sector (such as Amazon for .book and Johnson & Johnson for .baby).

The outcry was fierce and ICANN was inundated with public comments. Domain Name Representatives registrarssmall enterprises, non-commercial internet usersand even Microsoft urged ICANN to decline these applications.

Fortunately, ICANN heeded the wishes of the public, telling applicants that they could only operate these top-level domains if they allowed others to register their own names in these domains. Amazon would not be the sole owner of .book, and Google would not control .map as its private fiefdom. (Some TLDs that are non-generic brand names like .honda, .hermes, and .hyatt have been given to companies that own those brands as exclusive domains, and some like .pharmacy are restricted to a particular type of business. . . But no a Company.)

A working group within the ICANN community continued to debate the issue of “closed generics”, but the working group’s final report in 2020 made no recommendations. Proponents and opponents of closed generics tried to find common ground, but there was none that protected competition and prevented core word monopolization.

This is where things stood until earlier this year, when the Chairman of the ICANN Board, out of the blue, asked two bodies that do not normally develop policy to conduct a “dialogue” on closed generics: ICANN’s GNSO Council (which oversees community policy development for generic TLDs) and the Governmental Advisory Committee of ICANN (a group of government officials who, as the name suggests, only “advises”). The board hasn’t voted on the matter, so it’s unclear how many members actually support moving forward.

The Council’s letter was followed a few days later by a paper paid ICANN staff. It purported to be a “framing document” on the proposed dialogue. But in reality, the document presented a biased and one-sided history of the issue, falsely suggesting that closed generics were “implicitly” allowed under previous ICANN policies. The notion of “implicit” politics is anathema to an organization whose legitimacy depends on open, transparent and participatory decision-making. Moreover, the ICANN staff document gives no weight to a huge precedent – ​​one of the largest waves of global public contributions from ICANN, which was almost unanimously opposed to closed generics.

While the ICANN Board (or at least some of its members) attempt to begin a “dialogue” that would keep the closed generics proposal alive, the staff paper went even further and attempted to predetermine the outcome of this dialogue, suggesting that certain generic gated domains should be allowed, as long as corporate lawyers seeking to control these domains could come up with compelling “public interest goals.”

As a result, the rush for new private realms at the highest level of the Internet’s domain name system looks set to begin again.

Always a bad pro-monopoly idea

The problems of giving control to all possible domain name within a generic top-level domain for a single company are the same as in 2012 and 2020.

First of all, it is out of step with trademark law. In the United States and most countries, businesses cannot register a trademark in the generic term for this type of business. That’s why a computer company and a record company can obtain trademarks in the name “Apple”, but not a fruit company. Some trademark attorneys in the ICANN community have suggested that the US Supreme Court’s decision decision in the Booking.com case means that trademarks in generic words are now fair game, but that’s misleading. The Supreme Court ruled that adding “.com” to a generic word strength result in a valid trademark, but the registrant still needs to prove that the public associates that domain name with a particular business, not a general category. And it’s still difficult and rare. If trademark law does not allow companies to “own” generic words, as part of a domain name or otherwise, then ICANN should not give a single company what amounts to ownership of these words as top-level domains.

Second, closed generics are bad policy because they give an unfair advantage to companies that are already big and often dominant in their field. Screening a new gTLD doesn’t come cheap – the application fee alone is several hundred thousand dollars, and ongoing fees at ICANN are also high. Allowing a bookseller named Garcia to run a website at garcia.book is a powerful tool for creating a new independent business with its own online identity. A business with a memorable and descriptive domain name like garcia.book is less dependent on where it appears in Google’s search results or Facebook’s News Feed. If, instead, only Amazon could create websites ending in .book, the world’s small businesses would lose that competitive momentum, and Amazon’s image as the only online bookseller would be even more enduring.

Third, closed generics would blow a big hole in the pro-competitive firewall at the heart of ICANN: the rule that registries (wholesalers like Verisign that operate top-level domains) and registrars (retailers like Namecheap that register user names) must remain separate. This rule dates from the founding of ICANN in 1998 and was designed to break a monopoly on domain names. The structural separation rule, which is relatively easy to apply, helps to prevent the emergence of new domain name monopolies. Sole control of a generic top-level domain would mean that individual companies would act as a registry and the single registrar for a top-level domain.

The public does not need closed credits and “public interest” Promises do not work in ICANN-Land

The ICANN Board letter shared the 2013 GAC suggestion that closed generics should be allowed if they could be structured to “serve the public interest”. But what “public” is it? There’s no reason why giving full control of a generic TLD to a single company would serve internet users any better than a domain that’s open to everyone (or at least everyone in a company or profession). particular). The justifications we’ve seen boil down to saying that someone, somewhere, will come up with an innovative use for a closed generic domain. This simply begs the question, without explaining how exclusive control is a necessary characteristic.

On top of that, ICANN doesn’t have a good track record of keeping domain registries to the “public interest” promises they make – its enforcement mechanism is slow, cumbersome, and tends to involve ICANN in content moderation issues, which the organization is legitimately prohibited from doing.

More sequels

In the decade-plus of ICANN’s project to expand top-level domains, no company has been allowed to operate a generic TLD as a private realm. And despite two rounds of heated debate, the community hasn’t come up with a plan to do it well or fairly.

It’s time to stop.

The sole motive behind the pursuit of “compromises” on the issue of closed generics is the desire of the wealthiest players to control the basic resources of the Internet. ICANN should finally put its foot down, put the idea of ​​closed generics on the shelf and leave it there.