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[ga] On new gTLDs (fwd)

forwarded to be part of the "record"

A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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---------- Forwarded message ----------
Date: Wed, 14 Jul 1999 14:05:13 -0400 (EDT)
From: Michael Froomkin - U.Miami School of Law <froomkin@law.miami.edu>
To: comments-gtlds@dnso.org
Subject: On new gTLDs

Excerpt from http://www.law.miami.edu/~amf/commentary.htm (paras 77-83):

WIPO concludes that, "on condition that the proposed improved practices
for domain name registrations, the proposed administrative
dispute-resolution procedure and the proposed measures for the protection
of famous and well-known marks and for the suppression of abusive
registrations of domain names are all adopted, new gTLDs can be
introduced, provided that they are introduced in a slow and controlled
manner which takes account of the efficacy of the proposed new practices
and procedures in reducing existing problems." Final Report, paragraph
343. This conclusion is welcome and even enlightened compared to some of
the views that one hears. I think, however, it understates the urgent need
for one or more privacy-enhanced gTLDs. In general, it seems plausible
that a "controlled manner" can contribute to minimizing disputes in the
new gTLDs. Controlled, however, does not necessarily mean "slow"-rather,
it means "orderly." Indeed, I believe that one of most important things
that ICANN could do to reduce speculation in domain names, and thus reduce
the conflicts that are most likely to harm trademark owners, is to clearly
state an upgrade path for the introduction of new gTLDs as soon as

The issue of new gTLD's provides a classic example of the economics of
scarcity, of network effects, and the problem of path dependence.
Competition for attractive names in the .com, and to a lesser extent .net
and .org domains is driven by a combination of the following factors:

	1.	Second-Level Scarcity: There currently are only three open
gTLDs, causing a scarcity of available common English words, a perception
of an over-all shortage, and a hoarding mentality. This accounts for the
gold-rush approach to registrations.

	2.	Network effect: To a significant extent, .com has achieved
a small priority of place in the English-speaking Internet-using world as
the TLD of choice for commercial undertakings (although, interestingly, it
does not appear to have this priority in the non-English-speaking world).
If there were a substantial number of competitors for .com, and it became
widely understood that any Internet address was substantially arbitrary,
then the understandable fears of trademark owners that consumers might
naturally gravitate to .com in search of their product will be greatly

	3.	TLD Scarcity. If TLDs were managed on free-market
principles, the pent-up demand for additional attractive second-level
domains would surely have resulted in the creation of many new gTLDs
already. The move by some ccTLDs to brand themselves as de-facto gTLDs
(e.g. .tm, .md, .io, .to) demonstrates the existence of a market.
Furthermore, any proposal for creating a small number of new gTLDs,
slowly, that does not make it clear that many more will be created in a
predictable fashion according to a fairly predictable schedule risks
repeating the scarcity problem at least, and perhaps the network effect
problem as well. This is the problem of path-dependence. Perhaps
counter-intuitively, opening only a small number of domains in some ways
may be more harmful to trademark owners in the long run than opening so
many that the market for domains becomes flooded (and the value of
cyberpiracy/cybersquatting becomes greatly reduced as the number of
equally attractive TLDs grows). A world with many, differentiated, gTLDs
will help further educate users to the reality that the presence of a
particular word in a domain name does not necessarily map to a company
whose product may share that name. A substantial increase in the number of
gTLDs would also make it easier to provide attractive second-level names
to each of several parties with an interest in the same character string
(e.g., multiple holders of sectoral or national trademark interests in the
same name).

A fair solution requires some creativity. Although there may be some
technical constraints on the rate at which new TLDs safely can be
proliferated, and also on the absolute number that can comfortably be
established under the current architecture, I understand that there is no
technical reason why at least a hundred new TLDs could not be created over
a year at a rate of, say, two per week. While I do not necessarily
advocate that many, one should not assume that a solution with many gTLDs
will be worse than one with very few and the attendant scarcity mentality
that shortages breed. Indeed, Jon Postel proposed creating up to 150 more
TLDs. See Final Report, para. 305.

In my opinion, the issue of gTLDs open to all comers should not be
separated from the very closely related issue of restricted, or
structured/chartered, gTLDs. A restricted gTLD is a domain with a defined
and limited purpose. There have been a plethora of proposals for
restricted gTLDs, including suggestions of .biz (for firms only), .nom
(for personal names only), .per (ditto), .museum, .law, .fun, .xxx (a
domain which might make content filtering more easy for those who choose
that option), and many others.

One can imagine at least two kinds of restricted gTLD:

 	1.	An open restricted gTLD, where the purpose of the domain
is announced but registrations are taken in the same manner as .com, i.e.
first-come-first-served, with no policing of bona fides of registrant nor
of intended use prior to registration. What policing exists is driven by
third-party complaints after the fact; and both registry and registrar
seek to avoid participation in those disputes. This was the original
design of .net (for ISPs and related providers), and .org (for
non-profits); it is fair to say that as regards those domains the
structure has broken down.

	2.	A closed (or moderated) restricted gTLD, where not only is
the purpose of the domain announced, but the task of approving
registrations by policing the bona fides of registrant and/or the intended
use prior to registration is delegated to an Approval Authority. The
Approval Authority for each moderated gTLD would be an appropriate body,
with relevant expertise regarding the purposes of that domain. Policing
would exist would in the first instance be the gate-keeper function of the
Approval Authority, but there could also be scope for third party
complaints to the Approval Authority. The Authority would have the
authority to de-list registrants or transfer registrations if it upheld
complaints. There might also be scope for meta-policing via complaints (to
ICANN?) that the Approval Authority was doing a bad job.

Specialized gTLDs should be created, with a mixture of open and moderated
structures. A variety of procedures for helping ICANN to select the new
gTLDs to be created might be used. In addition to top-down planning of the
sort advocated above, some gTLDs might be allocated according to popular
demand, expressed and measured in some fashion akin to the procedures used
by the Usenet Volunteer Vote-Takers, or the procedures currently being
developed for membership in ICANN. In at least some of these there would
be no need for the sort of administrative dispute procedures advocated by
WIPO because the uses were purely non-commercial (with, perhaps, some sort
of policing or challenge mechanism to prevent abuse) or because access was
carefully controlled by a responsible body.

A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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