[governance] GeoTLD

Thu Dec 27 03:25:52 EST 2007

Michael,

thanks for your extensive thread on the .berlin TLD. It gives all of us more
insight on how you see the things. Just let me clairfy a single point: the
proposed "whatever" rights in the name Berlin.

"According to leading telecommunication, trademark and other law experts in
Germany (Prof. Koenig, Prof. Holznagel, Prof. Hoeren, Prof. Ingerl etc.) the
administration of TLDs like .berlin, .solingen or .bayern (Bavaria) by
private sector entities or entities of the local Internet community complies
with the national legal requirements. Their opinion regarding the particular
aspect of name and trademark rights is:

Both, the City and the State Berlin have a right in the name Berlin under
German laws. These rights can also be enforced as regards the choice of
Second-Level-Domains according to former court rulings (e.g. Heidelberg.de).
Contrarily, the use of names as TLDs cannot be prevented on the basis of
rights to a name, if the TLD is used as a label of geographic origin and
provided that the respective local and national governments are offered the
opportunity to reserve or block Second-Level-Domains within the TLD-Zone
prior to their public allocation (e.g. Senate.berlin, Bundestag.berlin). 

A name is only unlawfully arrogated when the interests of its holder are
violated. The addressed part of the public therefore would have to assume
that there is a direct or indirect connection between the TLD and a certain
governmental authority. In contrast, section 12 of the German Civil Code
(Bürgerliches Gesetzbuch) does not protect the holder of a name against
other uses of this name which do not lead to a confusion of correlation.

TLDs do not indicate the service or web site of an individual. They rather
identify respectively constitute name spaces. The relevant part of the
public does not expect a governmental administration of TLDs (see .de). As a
consequence, a local TLD like .berlin will not lead to a confusion of
correlation with regard to the federal capital of Berlin.

The federal capital does not enjoy a legal protection against a dilution of
its name that goes beyond the danger of confusion. The German Trade Mark Act
(Markengesetz) accepts third partys'  fair  use of city names."

All of you, have a smooth move to 2008

Dirk

-----Ursprüngliche Nachricht-----
Von: Michael Leibrandt [mailto:michael_leibrandt at web.de] 
Gesendet: Sonntag, 23. Dezember 2007 18:40
An: mueller at syr.edu
Cc: governance at lists.cpsr.org
Betreff: [governance] GeoTLD

Milton,

Thanks for your message from December 11th.

I could easily turn your question around and ask: Where are the titles of
those who want to utilize a famous state or city name (and here I'm not
talking about placeholder concepts like .cat, .nyc or .baires) with a
technology-based monopoly? Different cultures have developed different
approaches regarding the balance between individual freedom and collective
rights. I fully respect the position of colleagues around the world, but at
the same time I strongly believe that decisions with regional impact should
be made based on regional norms and values. Again: The Internet is a global
network, but that doesnt necessarily mean that all decisions have to be
made at a global level. 

Though the German legal system is not as much case based as the US one, its
helpful to not only check the wording of the relevant law (especially the
German Civil Code), but also look at relevant court decisions. Obviously, we
don't have a decision on a Geo-gTLD yet, but a number of interesting
high-level decions regarding the use of city names at the second level, e.
g. the solingen-info.de and solingen.info cases from September last year.
Contrary to some others I do not expect that in a decision on a CityTLD the
right of the city and state of Berlin in the name "Berlin" which is
protected under German law would be watered down. But the question is, what
should ICANN do in the meanwhile? Introduce a CityTLD knowing that there is
a serious conflict within the local community? Imagine a situation in which
a negative court ruling would come after the market introduction of the new
TLD. Who would be held liable?   

Should the relevant authorities be allowed to not only not support but also
stop a Geo-gTLD proposal that uses (only) the full string of the relevant
political-administrative entity? Of course they should! Public policy
includes economic policy, and economic policy includes competition policy.
Due to the current structure of the DNS, a full CityTLD necessarily
establishes a technology-based monopoly, or at least a superior market
position. Even dotBerlin admits that a TLD solution is more attractive than
using "Berlin" at the second level, including the fact that in Google
searches domain names using the CityTLD would get a higher ranking (see
www.openplans.org/projects/campaign-for.nyc/advantages-of-the-nyc-tld). The
introduction of a .berlin would primarily not effect the domain name market
in Brasilia, Canberra or Washington D.C., but the one in Berlin. So it's a
decision to be made in Berlin. As long as hundreds of alternatives are
already available or could easily be established (using existing TLD;
introducing new TLD like .city or .metropole; introducing placeholder
CityTLD like .ber, .bln, combined strings like .berlinfriends etc.), I do
not see why any authority should allow somebody to gain a superior market
position. The introduction of a CityTLD using only the name string does not
strengthen competition, but is the end of fair competition. 

The legal and economic assessment has to be made at the local level, not in
Marina del Rey. The core function of ICANN is that of a technical
co-ordination body, and wherever possible, it should stick to that role.
ICANN should especially not try to become a global regulator, watching local
and regional Domain Name markets, finally judging oh, in city X a Geo-gTLD
may enrich the market, but in city Y it already looks like cut-throat
competition.... Quite similiar to the ccTLD re-delegation process
(actually, compared to the use of strange two-letter ISO codes the use of a
full geo-string is even more sensitive to the local community), ICANN should
follow exernal decisions and restrict itself to a verification of the
technical expertise of the future registry.    

If you put into question the competence or legitimacy of elected officials
and the public authorities regarding the GeoTLD issue - where do you see the
role of citizens? Should they have a say regarding the use of the name of
the city they live in? As of today, the number of people from Berlin openly
supporting the .berlin proposal via the dotBerlin website is somewhat around
330, which equals roughly 0.01% of the Berlin population. Is this an
adequate number of supportes? And how many citizens are needed to veto a
CityTLD proposal, e. g. by sending emails to ICANN? Number of supporters
plus one? 10%, 25% or 50% of the population? 

The question of "who speaks for Berlin" is especially important if you
follow the concept of GeoTLD being a sponsored TLD. sTLD require not only a
sponsored community, but also a sponsoring organization. Actually, it is
expected to provide evidence of support from the sponsoring organization.
So, in the case of a CityTLD, who is the sponsoring organization? dotBerlin
claims that it "represents all Berliners in applying for the .berlin TLD
..." (see www.dotberlin.de/en/about; interestingly nobody in my friends and
family circle has ever given this mandate to the company), but my
understanding of a sTLD is that registry and sponsoring organization should
be seperate entities. Business associations etc. only reflect the position
of specific parts of the society, not the local community at-large. So, who
can represent a city or state, if not those legitimate authorities that do
exactly the same in all other areas? (By the way, I don't think that the
sTLD concept applies to GeoTLD, because if you allow everybody to register
under a certain TLD, there is no precisely defined sponsored community.)   

>From my point of view, your question regarding a possible re-naming of a
city in N.J. does not fit into this discussion. Many cities can carry the
name Berlin without seriously effeting each other, so why should there be a
problem? This is not the monopoly situation of a CityTLD using the Berlin
string. Same goes for using the string in book titles etc. 

Regarding your remark on ALAC: If you subscribe to my model in which,
regarding full Geo-gTLD, the ICANN board simply follows decisions made at
the local or regional level, than there is no need to talk about ALAC. But
if you see it as an internal ICANN process, than you have to answer the
question how to integrate the relevant ICANN constituencies, and this does
not only include the GNSO, but also the GAC and, of course, the ALAC.   

Enjoy the Holiday season,

Michael

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