Domain Complaints – The Public’s Concern and ICANN’s Request Regarding Closed Generic Domains

ICANN’s system for new generic top level domains (gTLDs) presents a number of issues that have yet to be resolved – and ICANN has recently asked the public to help with a solution to one of them. About 1900 applications for new gTLDs are currently pending. Only about 40% of these are applications for brand names. A large percentage of the others are what many would consider “generic” words – applications for .app, .insurance, .search, and .book, for example. If allowed to register as closed domains, a single player could control the entire domain string related to a “generic” word – and prevent others from registering within it. Many have already voiced their concerns about these “closed generic” domains through a number of ways ICANN allows the public’s voice to be heard in this process. Members of the community, for example, have filed public comments on numerous “generic” applications, which may be considered by ICANN in considering an application and by the Independent Objector in considering taking his own action. The Governmental Advisory Committee ("GAC") issued its own Early Warnings, a number of them based on members' concern that restricting common generic strings for the exclusive use of a single entity could have unintended consequences, including a negative impact on competition.  Industry groups, stakeholder businesses, and individuals all have taken even additional actions by sending their own letters to ICANN, GAC, and others involved in the process to voice their concerns with allowing “closed generic” domains.  Often the solutions proposed are that ICANN either require the applicant to open the TLD or reject it with a full refund to the applicant of the hefty filing fees.

ICANN has taken notice of these concerns, and recently has requested the public's help in addressing the problem.  The policy advice upon which the new gTLD system was based did not contain guidance on, for example, how ICANN should place restrictions on applicant's registration policies.

Specifically, ICANN seek public comments no later than March 7, 2013, on the following:

• The subject of "closed generic" gTLD applications and whether specific requirements should be adopted;
• How to determine whether a string is generic; and
• Determining the circumstances under which a particular TLD operator should be permitted to adopt "open" or "closed" registration policies.

These issues involve questions of trademarks, anti-competition, and consumer protection, among others.  Moreover, as ICANN has itself recognized, "defining a 'generic' category of strings is a complex undertaking as strings may have many meanings and have implications for several languages." Given the global nature of the system and the significant financial interests at play, we can expect that the comments will be wide-ranging.  Based on the large number of arguably "generic" words that have been applied for, essentially every industry is affected.  It makes sense to consider the list of applications and whether your organization has an interest in voicing its concern about these important issues.  After all, their solution will have long-lasting implications about the way the Internet - and users of it - operate.