[governance] GeoTLD

Thu Dec 27 11:30:16 EST 2007

I think it's important to note that this opinion of the German professors 
(at least as described below) relates to the position under German 
*domestic* law.  It does not, as far as one can tell from the summary, 
address whether these views and conditions have any applicability outside 
Germany.

The opinion of this (US) law professor is that they do not and could not. 
There are only two sources of law of which I am aware by which they might: 
cultural property law, and trademark law.  Neither provides such rights at 
the international level.  See 
http://www.law.miami.edu/~froomkin/articles/ccTLDs-TM.pdf for details.

Thus, as far as ICANN is concerned, the question of whether and how to 
allocate a geographically descriptive TLD is a pure policy issue, not a 
legal one.

(For what it's worth, I persist in the view that ICANN would be smartest 
not to even attempt to make these decisions, but rather to allocate the 
right to choose names to qualified parties, who would then take on the 
policy and legal burdens of whatever choice they made.)

On Thu, 27 Dec 2007, Dirk Krischenowski | dotBERLIN wrote:

> 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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